Full Text of HB2708 94th General Assembly
HB2708sam003 94TH GENERAL ASSEMBLY
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Sen. Jacqueline Y. Collins
Filed: 11/28/2006
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| AMENDMENT TO HOUSE BILL 2708
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| AMENDMENT NO. ______. Amend House Bill 2708, AS AMENDED, by | 3 |
| replacing everything after the enacting clause with the | 4 |
| following:
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| "Section 5. "AN ACT concerning State government, which may | 6 |
| be cited as the Act to End Atrocities and Terrorism in the | 7 |
| Sudan", approved June 27, 2005, Public Act 94-79, is amended by | 8 |
| adding Sections 1 and 95 as follows: | 9 |
| (P.A. 94-79, Sec. 1 new) | 10 |
| Sec. 1. Findings. The Government of the United States has | 11 |
| determined that the Republic of Sudan is a nation that sponsors | 12 |
| terrorism and genocide.
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| The General Assembly finds that investments in enterprises | 14 |
| that engage in commercial activities in the Republic of Sudan | 15 |
| are inherently risky. | 16 |
| The General Assembly further finds and affirms that the | 17 |
| people of the State, acting through their representatives, do | 18 |
| not want to be associated with enterprises that engage in | 19 |
| commercial activities in the Republic of Sudan.
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| (P.A. 94-79, Sec. 95 new) | 21 |
| Sec. 95. Severability. The provisions of this Act are | 22 |
| severable under Section 1.31 of the Statute on Statutes. |
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| Section 10. The Deposit of State Moneys Act is amended by | 2 |
| changing Section 22.6 as follows: | 3 |
| (15 ILCS 520/22.6) | 4 |
| (For force and effect of certain provisions, see Section 90 | 5 |
| of P.A. 94-79) | 6 |
| Sec. 22.6. Prohibited deposits. | 7 |
| (a) Notwithstanding any other provision of law, the State | 8 |
| Treasurer shall not deposit any funds into or otherwise | 9 |
| contract with any financial institution unless an expressly | 10 |
| authorized officer of that financial institution annually | 11 |
| certifies, in the manner and form established by the Treasurer, | 12 |
| that the financial institution has implemented policies and | 13 |
| practices that require loan recipients
applicants to certify | 14 |
| that they are not forbidden entities. | 15 |
| (b) For the purposes of this Section: | 16 |
| "Company" is any entity capable of affecting commerce, | 17 |
| including but not limited to (i) a government, government | 18 |
| agency, natural person, legal person, sole proprietorship, | 19 |
| partnership, firm, corporation, subsidiary, affiliate, | 20 |
| franchisor, franchisee, joint venture, trade association, | 21 |
| financial institution, utility, public franchise, provider of | 22 |
| financial services, trust, or enterprise; and (ii) any | 23 |
| association thereof. | 24 |
| "Forbidden entity" means any of the following: | 25 |
| (1) The government of the Republic of the Sudan and any | 26 |
| of its agencies, including but not limited to political | 27 |
| units and subdivisions; | 28 |
| (2) Any company that is wholly or partially managed or | 29 |
| controlled by the government of the Republic of the Sudan | 30 |
| and any of its agencies, including but not limited to | 31 |
| political units and subdivisions; | 32 |
| (3) Any company (i) that is established or organized | 33 |
| under the laws of the Republic of the Sudan; or (ii) whose |
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| principal place of business is in the Republic of the | 2 |
| Sudan; | 3 |
| (4) Any company (i) identified by the Office of Foreign | 4 |
| Assets Control in the United States Department of the | 5 |
| Treasury as sponsoring terrorist activities; or (ii) | 6 |
| fined, penalized, or sanctioned by the Office of Foreign | 7 |
| Assets Control in the United States Department of the | 8 |
| Treasury for any violation of any United States rules and | 9 |
| restrictions relating to the Republic of the Sudan that | 10 |
| occurred at any time following the effective date of this | 11 |
| Act; and | 12 |
| (5) Any company who has failed to certify under oath | 13 |
| that it does not own or control any property or asset | 14 |
| located in, have employees or facilities located in, | 15 |
| provide goods or services to, obtain goods or services | 16 |
| from, have distribution agreements with, issue credits or | 17 |
| loans to, purchase bonds or commercial paper issued by, or | 18 |
| invest in (i) the Republic of the Sudan; or (ii) any | 19 |
| company domiciled in the Republic of the Sudan. | 20 |
| Notwithstanding the foregoing, the term "forbidden entity" | 21 |
| shall exclude companies that transact business in Sudan under | 22 |
| the law, license, or permit of the United States, including a | 23 |
| license from the United States Department of the Treasury, and
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| companies, except agencies of the Republic of the Sudan, who | 25 |
| are certified as Non-Government Organizations by the United | 26 |
| Nations, or who engage solely in (i) the provision of goods and | 27 |
| services intended to relieve human suffering or to promote | 28 |
| welfare, health, religious and spiritual activities, and | 29 |
| education for humanitarian purposes or otherwise; or (ii) | 30 |
| journalistic activities. | 31 |
| (c) In addition to any other penalties and remedies | 32 |
| available under the law of Illinois and the United States, any | 33 |
| transaction between a financial institution and a company that | 34 |
| violates the provisions of this Act shall be void or voidable, |
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| at the joint discretion of the Treasurer and the financial | 2 |
| institution.
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| (d) This Section does not apply to (a) linked deposits made | 4 |
| by the Treasurer into financial institutions in return for that | 5 |
| institution's commitment to provide, through loans or other | 6 |
| financial support, agreed benefits in projects undertaken in | 7 |
| the community; and (b) the purchase of depository, custodial, | 8 |
| processing, and advisory services that are necessary to fulfill | 9 |
| the Treasurer's obligations and responsibilities.
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| (e) If any provision of this Section or its application to | 11 |
| any person or circumstance is held invalid, the invalidity of | 12 |
| that provision or application does not affect other provisions | 13 |
| or applications of this Section that can be given effect | 14 |
| without the invalid provision or application.
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| (Source: P.A. 94-79, eff. 1-27-06; for force and effect of | 16 |
| certain provisions, see Section 90 of P.A. 94-79 .) | 17 |
| Section 15. The Illinois Pension Code is amended by | 18 |
| changing Section 1-110.5 as follows: | 19 |
| (40 ILCS 5/1-110.5) | 20 |
| (For force and effect of certain provisions, see Section 90 | 21 |
| of P.A. 94-79) | 22 |
| Sec. 1-110.5. Certain prohibited transactions. | 23 |
| (a) A fiduciary of a retirement system or pension fund | 24 |
| established under this Code shall not transfer or disburse | 25 |
| funds to, deposit into, acquire any bonds or commercial paper | 26 |
| from, or otherwise loan to or invest in any entity unless , as | 27 |
| provided in this Section, a certifying company
the company | 28 |
| charged with managing the assets of the retirement system or | 29 |
| pension fund, at no additional cost to the fiduciary, certifies | 30 |
| twice a year to the retirement system or pension fund
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| fiduciary , in the time, manner , and form established by the | 32 |
| Treasurer, that , with respect to investments in a publicly |
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| traded company, the certifying company has relied on | 2 |
| information provided by an independent researching firm that | 3 |
| specializes in global security risk and that : | 4 |
| (1) except for automatic dividend reinvestment, none | 5 |
| of the retirement system or pension fund's assets for which | 6 |
| the certifying company provides services or advice have | 7 |
| been invested in a forbidden entity any time after January | 8 |
| 27, 2006 (the effective date of Public Act 94-79)
the fund | 9 |
| managing company has not loaned to, invested in, or | 10 |
| otherwise transferred any of the retirement system or | 11 |
| pension fund's assets to a forbidden entity any time after | 12 |
| the effective date of this Act ; | 13 |
| (2) at least 60% of the retirement system or pension | 14 |
| fund's assets for which the certifying company provides | 15 |
| services or advice are not invested in forbidden entities | 16 |
| at any time after January 27, 2007 ( more than twelve months | 17 |
| after the effective date of Public Act 94-79)
this Act ; and
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| (3) at least 100% of the retirement system or pension | 19 |
| fund's assets for which the certifying company provides | 20 |
| services or advice are not invested in forbidden entities | 21 |
| at any time after July 27, 2007 ( more than eighteen months | 22 |
| after the effective date of Public Act 94-79)
this Act . | 23 |
| (b) For purposes of this Section: | 24 |
| "Certifying company" means a company that (1) directly | 25 |
| provides asset management services or advice to a retirement | 26 |
| system or pension fund; (2) as directly authorized or requested | 27 |
| by a retirement system or pension fund (A) identifies | 28 |
| particular investment options for consideration or approval; | 29 |
| (B) chooses particular investment options; or (C) allocates | 30 |
| particular amounts to be invested; or (3) manages mutual funds | 31 |
| or a similar mutual compilation of investment in publicly | 32 |
| traded companies and is willing to fulfill the certification | 33 |
| requirements established in subsection (a) of this Section. In | 34 |
| the event that no company, except officers of a retirement |
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| system or pension fund, meets the criteria set forth this | 2 |
| paragraph, "certifying company" shall mean the retirement | 3 |
| system or pension fund officer who, as designated by the board, | 4 |
| executes the investment decisions made by the board, or, in the | 5 |
| alternative, the company that the board authorizes to complete | 6 |
| the certification as the agent of said officer.
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| "Company" is any entity capable of affecting commerce, | 8 |
| including but not limited to (i) a government, government | 9 |
| agency, natural person, legal person, sole proprietorship, | 10 |
| partnership, firm, corporation, subsidiary, affiliate, | 11 |
| franchisor, franchisee, joint venture, trade association, | 12 |
| financial institution, utility, public franchise, provider of | 13 |
| financial services, trust, or enterprise; and (ii) any | 14 |
| association thereof. | 15 |
| "Forbidden entity" means any of the following: | 16 |
| (1) The government of the Republic of the Sudan and any | 17 |
| of its agencies, including but not limited to political | 18 |
| units and subdivisions;
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| (2) Any company that is wholly or partially managed or | 20 |
| controlled by the government of the Republic of the Sudan | 21 |
| and any of its agencies, including but not limited to | 22 |
| political units and subdivisions; | 23 |
| (3) Any company (i) that is established or organized | 24 |
| under the laws of the Republic of the Sudan; (ii) whose | 25 |
| principal place of business is in the Republic of the | 26 |
| Sudan; | 27 |
| (4) Any company (i) identified by the Office of Foreign | 28 |
| Assets Control in the United States Department of the | 29 |
| Treasury as sponsoring terrorist activities; or (ii) | 30 |
| fined, penalized, or sanctioned by the Office of Foreign | 31 |
| Assets Control in the United States Department of the | 32 |
| Treasury for any violation of any United States rules and | 33 |
| restrictions relating to the Republic of the Sudan that | 34 |
| occurred at any time following the effective date of this |
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| Act; and | 2 |
| (5) (i) Any publicly traded company who has been
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| identified by an independent researching firm that | 4 |
| specializes in global security risk and that has been | 5 |
| retained by a certifying company as provided in subsection | 6 |
| (a) of this Section as being a company that owns or | 7 |
| controls property or assets located in, has employees or | 8 |
| facilities located in, provides goods or services to, | 9 |
| obtain goods or services from, has distribution agreements | 10 |
| with, issue credits or loans to, purchase bonds or | 11 |
| commercial paper issued by, or invest in (A)
(i) the | 12 |
| Republic of the Sudan; or (B)
(ii) any company domiciled in | 13 |
| the Republic of the Sudan ; and (ii) any mutual fund or | 14 |
| similar mutual compilation of investment in publicly | 15 |
| traded companies that, according to the most recent report | 16 |
| published or filed by the mutual company at least 2 months | 17 |
| before the certification date, contains a company | 18 |
| identified by said independent researching firm as being a | 19 |
| company defined in item (i) of this paragraph (5) ; and | 20 |
| (6) Any private fund that, at no additional cost to the | 21 |
| retirement system or pension fund: | 22 |
| (i) fails to submit to the certifying company an | 23 |
| affidavit sworn under oath in which an expressly | 24 |
| authorized officer of the private fund avers that the | 25 |
| private fund (A) does not own or control any property | 26 |
| or asset located in the Republic of the Sudan and (B) | 27 |
| did not transact commercial business in the Republic of | 28 |
| the Sudan; or | 29 |
| (ii) fails to (A) submit to the certifying company | 30 |
| a certificate in which an expressly authorized officer | 31 |
| of the private fund certifies that the private fund, | 32 |
| based on reasonable due diligence, has determined | 33 |
| that, since January 27, 2006 (the effective date of | 34 |
| Public Act 94-79), other than direct or indirect |
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| investments in companies certified as Non-Government | 2 |
| Organizations by the United Nations, the private fund | 3 |
| has no direct or indirect investment in any company (I) | 4 |
| organized under the laws of the Republic of Sudan; (II) | 5 |
| whose principal place of business is in the Republic of | 6 |
| Sudan; (III) that conducts operations in the Republic | 7 |
| of Sudan; or (IV) that owns any interest in real estate | 8 |
| in the Republic of Sudan; and (B) agree that the | 9 |
| retirement system or pension fund, directly or through | 10 |
| an agent, may from time to time review the private | 11 |
| fund's certification process based on the periodic | 12 |
| reports received by the private fund.
Any non | 13 |
| publicly-traded company that fails to submit to the | 14 |
| fund managing company an affidavit sworn under oath in | 15 |
| which an expressly authorized officer of the company | 16 |
| avers that the company (i) does not own or control any | 17 |
| property or asset located in the Republic of the Sudan; | 18 |
| and (ii) did not transact commercial business in the | 19 |
| Republic of the Sudan. | 20 |
| Notwithstanding the foregoing, the term "forbidden entity" | 21 |
| shall exclude companies that transact business in Sudan under | 22 |
| the law, license, or permit of the United States, including a | 23 |
| license from the United States Department of the Treasury, and
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| companies, except agencies of the Republic of the Sudan, who | 25 |
| are certified as Non-Government Organizations by the United | 26 |
| Nations, or who engage solely in (i) the provision of goods and | 27 |
| services intended to relieve human suffering or to promote | 28 |
| welfare, health, religious and spiritual activities, and | 29 |
| education or humanitarian purposes or otherwise ; or (ii) | 30 |
| journalistic activities. | 31 |
| "Private fund" means any private equity fund, private | 32 |
| equity fund of funds, venture capital fund, hedge fund, hedge | 33 |
| fund of funds, real estate fund, or other investment vehicle | 34 |
| that is not publicly traded.
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| (c) In addition to any other penalties and remedies | 2 |
| available under the law of Illinois and the United States, any | 3 |
| transaction that violates the provisions of this Act shall be | 4 |
| void or voidable, at the sole discretion of the fiduciary.
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| (d) If a private fund fails to provide the certification | 6 |
| required in subparagraph (ii) of item (6) of the definition of | 7 |
| "forbidden entity" in subsection (b) of this Section: | 8 |
| (1) the certifying company shall have 90 days to divest | 9 |
| or attempt in good faith to divest its interest in the | 10 |
| companies for which such certification has not been made, | 11 |
| unless such divestment would be inconsistent with its | 12 |
| fiduciary obligations to the other investors in the private | 13 |
| fund; if the asset managing company charged with providing | 14 |
| the certification required by subsection (a) of this | 15 |
| Section fails to divest such interest within 90 days, it | 16 |
| shall not unreasonably withhold its consent to a transfer | 17 |
| of the retirement system or pension fund's interest in said | 18 |
| private fund; and | 19 |
| (2) retirement systems and pension funds established | 20 |
| under this Code shall be prohibited from directly or | 21 |
| indirectly investing in that private fund for a period of 3 | 22 |
| years after the date upon which it failed to provide the | 23 |
| required certification. | 24 |
| (e) The certification required under subsection (a) shall | 25 |
| be provided at no additional cost to the retirement system or | 26 |
| pension fund, unless the certifying company is the retirement | 27 |
| system or pension fund officer who executes the investment | 28 |
| decisions made by the board or the company that the board | 29 |
| authorizes to complete the certification as the agent of the | 30 |
| officer.
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| (f) The changes made to this Section by this amendatory Act | 32 |
| of the 94th General Assembly shall have full force and effect | 33 |
| until such time as the government of the United States, through | 34 |
| Executive Order or otherwise, rescinds Executive Order 13067, |
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| or until such time as these provisions are repealed or modified | 2 |
| by the General Assembly. The changes made to this Section by | 3 |
| this amendatory Act of the 94th General Assembly shall be | 4 |
| construed under the laws of the State of Illinois and, where | 5 |
| applicable, the laws of the United States.
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| (g) If any provision of this Section or its application to | 7 |
| any person or circumstance is held invalid, the invalidity of | 8 |
| that provision or application does not affect other provisions | 9 |
| or applications of this Section that can be given effect | 10 |
| without the invalid provision or application.
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| (Source: P.A. 94-79, eff. 1-27-06; for force and effect of | 12 |
| certain provisions, see Section 90 of P.A. 94-79 .) | 13 |
| Section 20. The State Lawsuit Immunity Act is amended by | 14 |
| adding Section 1.7 as follows: | 15 |
| (745 ILCS 5/1.7 new)
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| Sec. 1.7. Limited capacity of bodies politic and corporate | 17 |
| and other public bodies to bring actions against governmental | 18 |
| officers, officials, and employees. | 19 |
| (a) Except as provided in the Illinois Public Labor | 20 |
| Relations Act, the Court of Claims act, and State Officials and | 21 |
| Employees Ethics Act, and Section 1.5 of this Act, no | 22 |
| governmental entity, no quasi-governmental entity, no body | 23 |
| politic and corporate, and no other body created by or under | 24 |
| the authority of statute or executive order, and no officer, | 25 |
| official, employee, or agent of such entity or body, had or has | 26 |
| the authority to make any officer, official, or employee of the | 27 |
| State in his or her official capacity as such an officer, | 28 |
| official, or employee, a defendant or party in any court. This | 29 |
| prohibition does not apply, however, if both the officer, | 30 |
| official, or employee and the Illinois Attorney General consent | 31 |
| in writing that the officer, official, or employee may be made | 32 |
| a defendant or party in the Illinois courts. Such consent shall |
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| be filed of record with the court, and shall be necessary for | 2 |
| jurisdiction. Any consent, as a matter of law, shall be consent | 3 |
| only to an action in the Illinois courts and shall not be | 4 |
| consent to any action commenced in or transferred or removed to | 5 |
| a federal court or a court of any other state jurisdiction. | 6 |
| (b) This Section applies to all pending actions and all | 7 |
| actions commenced on or after the effective date of this | 8 |
| amendatory Act of the 94th General Assembly. | 9 |
| (c) The regulation of the authority of bodies politic and | 10 |
| corporate, and their officers, officials, employees, and | 11 |
| agents, to make a governmental officer, official, or employee, | 12 |
| in his or her capacity as such an officer, official, or | 13 |
| employees, a defendant or party in any court is an exclusive | 14 |
| power and function of the State. This Section is a denial and | 15 |
| limitation of home rule powers and functions under subsection | 16 |
| (h) of Section 6 of Article VII of the Illinois Constitution. | 17 |
| (d) If any provision of this Section or its application to | 18 |
| any person or circumstance is held invalid, the invalidity of | 19 |
| that provision or application does not affect other provisions | 20 |
| or applications of this Section that can be given effect | 21 |
| without the invalid provision or application.
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| Section 97. Severability. The provisions of this Act are | 23 |
| severable under Section 1.31 of the Statute on Statutes.
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| Section 99. Effective date. This Act takes effect upon | 25 |
| becoming law.".
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