Full Text of HB0345 97th General Assembly
HB0345ham001 97TH GENERAL ASSEMBLY | Rep. Ann Williams Filed: 4/13/2011
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| 1 | | AMENDMENT TO HOUSE BILL 345
| 2 | | AMENDMENT NO. ______. Amend House Bill 345 by replacing | 3 | | everything after the enacting clause with the following:
| 4 | | "Section 5. The State Officials and Employees Ethics Act is | 5 | | amended by changing Sections 5-45, 20-50, and 50-5 as follows: | 6 | | (5 ILCS 430/5-45)
| 7 | | Sec. 5-45. Procurement; revolving door prohibition.
| 8 | | (a) No former officer, member, or State employee, or spouse | 9 | | or
immediate family member living with such person, shall, | 10 | | within a period of one
year immediately after termination of | 11 | | State employment, knowingly accept
employment or receive | 12 | | compensation or fees for services from a person or entity
if | 13 | | the officer, member, or State employee, during the year | 14 | | immediately
preceding termination of State employment, | 15 | | participated personally and
substantially in the award of State | 16 | | contracts, or the issuance of State contract change orders, |
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| 1 | | with a cumulative value
of $25,000
or more to the person or | 2 | | entity, or its parent or subsidiary.
| 3 | | (b) No former officer of the executive branch or State | 4 | | employee of the
executive branch with regulatory or
licensing | 5 | | authority, or spouse or immediate family member living with | 6 | | such
person, shall, within a period of one year immediately | 7 | | after termination of
State employment, knowingly accept | 8 | | employment or receive compensation or fees
for services from a | 9 | | person or entity if the officer
or State
employee, during the | 10 | | year immediately preceding
termination of State employment, | 11 | | participated personally and substantially in making a | 12 | | regulatory or licensing decision that
directly applied to the | 13 | | person or entity, or its parent or subsidiary.
| 14 | | (c) Within 6 months after the effective date of this | 15 | | amendatory Act of the 96th General Assembly, each executive | 16 | | branch constitutional officer and legislative leader, the | 17 | | Auditor General, and the Joint Committee on Legislative Support | 18 | | Services shall adopt a policy delineating which State positions | 19 | | under his or her jurisdiction and control, by the nature of | 20 | | their duties, may have the authority to participate personally | 21 | | and substantially in the award of State contracts or in | 22 | | regulatory or licensing decisions. The Governor shall adopt | 23 | | such a policy for all State employees of the executive branch | 24 | | not under the jurisdiction and control of any other executive | 25 | | branch constitutional officer.
| 26 | | The policies required under subsection (c) of this Section |
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| 1 | | shall be filed with the appropriate ethics commission | 2 | | established under this Act or, for the Auditor General, with | 3 | | the Office of the Auditor General. | 4 | | (d) Each Inspector General shall have the authority to | 5 | | determine that additional State positions under his or her | 6 | | jurisdiction, not otherwise subject to the policies required by | 7 | | subsection (c) of this Section, are nonetheless subject to the | 8 | | notification requirement of subsection (f) below due to their | 9 | | involvement in the award of State contracts or in regulatory or | 10 | | licensing decisions. | 11 | | (e) The Joint Committee on Legislative Support Services, | 12 | | the Auditor General, and each of the executive branch | 13 | | constitutional officers and legislative leaders subject to | 14 | | subsection (c) of this Section shall provide written | 15 | | notification to all employees in positions subject to the | 16 | | policies required by subsection (c) or a determination made | 17 | | under subsection (d): (1) upon hiring, promotion, or transfer | 18 | | into the relevant position; and (2) at the time the employee's | 19 | | duties are changed in such a way as to qualify that employee. | 20 | | An employee receiving notification must certify in writing that | 21 | | the person was advised of the prohibition and the requirement | 22 | | to notify the appropriate Inspector General in subsection (f). | 23 | | (f) Any State employee in a position subject to the | 24 | | policies required by subsection (c) or to a determination under | 25 | | subsection (d), but who does not fall within the prohibition of | 26 | | subsection (h) below, who is offered non-State employment |
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| 1 | | during State employment or within a period of one year | 2 | | immediately after termination of State employment shall, prior | 3 | | to accepting such non-State employment, notify the appropriate | 4 | | Inspector General. Within 10 business calendar days after | 5 | | receiving notification from an employee in a position subject | 6 | | to the policies required by subsection (c), such Inspector | 7 | | General shall make a determination as to whether the State | 8 | | employee is restricted from accepting such employment by | 9 | | subsection (a) or (b). In making a determination, in addition | 10 | | to any other relevant information, an Inspector General shall | 11 | | assess the effect of the prospective employment or relationship | 12 | | upon decisions referred to in subsections (a) and (b), based on | 13 | | the totality of the participation by the former officer, | 14 | | member, or State employee in those decisions. A determination | 15 | | by an Inspector General must be in writing, signed and dated by | 16 | | the Inspector General, and delivered to the subject of the | 17 | | determination within 10 calendar days or the person is deemed | 18 | | eligible for the employment opportunity. For purposes of this | 19 | | subsection, "appropriate Inspector General" means (i) for | 20 | | members and employees of the legislative branch, the | 21 | | Legislative Inspector General; (ii) for the Auditor General and | 22 | | employees of the Office of the Auditor General, the Inspector | 23 | | General provided for in Section 30-5 of this Act; and (iii) for | 24 | | executive branch officers and employees, the Inspector General | 25 | | having jurisdiction over the officer or employee. Notice of any | 26 | | determination of an Inspector General and of any such appeal |
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| 1 | | shall be given to the ultimate jurisdictional authority, the | 2 | | Attorney General, and the Executive Ethics Commission. | 3 | | (g) An Inspector General's determination regarding | 4 | | restrictions under subsection (a) or (b) may be appealed to the | 5 | | appropriate Ethics Commission by the person subject to the | 6 | | decision or the Attorney General no later than the 10th | 7 | | business calendar day after the date of the determination. | 8 | | On appeal, the Ethics Commission or Auditor General shall | 9 | | seek, accept, and consider written public comments regarding a | 10 | | determination. In deciding whether to uphold an Inspector | 11 | | General's determination, the appropriate Ethics Commission or | 12 | | Auditor General shall assess, in addition to any other relevant | 13 | | information, the effect of the prospective employment or | 14 | | relationship upon the decisions referred to in subsections (a) | 15 | | and (b), based on the totality of the participation by the | 16 | | former officer, member, or State employee in those decisions. | 17 | | The Ethics Commission shall decide whether to uphold an | 18 | | Inspector General's determination within 10 business calendar | 19 | | days or the person is deemed eligible for the employment | 20 | | opportunity. | 21 | | (h) The following officers, members, or State employees | 22 | | shall not, within a period of one year immediately after | 23 | | termination of office or State employment, knowingly accept | 24 | | employment or receive compensation or fees for services from a | 25 | | person or entity if the person or entity or its parent or | 26 | | subsidiary, during the year immediately preceding termination |
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| 1 | | of State employment, was a party to a State contract or | 2 | | contracts with a cumulative value of $25,000 or more involving | 3 | | the officer, member, or State employee's State agency, or was | 4 | | the subject of a regulatory or licensing decision involving the | 5 | | officer, member, or State employee's State agency, regardless | 6 | | of whether he or she participated personally and substantially | 7 | | in the award of the State contract or contracts or the making | 8 | | of the regulatory or licensing decision in question: | 9 | | (1) members or officers; | 10 | | (2) members of a commission or board created by the | 11 | | Illinois Constitution; | 12 | | (3) persons whose appointment to office is subject to | 13 | | the advice and consent of the Senate; | 14 | | (4) the head of a department, commission, board, | 15 | | division, bureau, authority, or other administrative unit | 16 | | within the government of this State; | 17 | | (5) chief procurement officers, State purchasing | 18 | | officers, and their designees whose duties are directly | 19 | | related to State procurement; and | 20 | | (6) chiefs of staff, deputy chiefs of staff, associate | 21 | | chiefs of staff, assistant chiefs of staff, and deputy | 22 | | governors. | 23 | | (Source: P.A. 96-555, eff. 8-18-09.) | 24 | | (5 ILCS 430/20-50)
| 25 | | Sec. 20-50. Investigation reports.
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| 1 | | (a) If an Executive Inspector General, upon the conclusion | 2 | | of an
investigation, determines that reasonable cause exists to | 3 | | believe that a
violation
has occurred, then
the Executive | 4 | | Inspector General shall issue a summary report of the
| 5 | | investigation. The report shall be delivered to the
appropriate | 6 | | ultimate jurisdictional
authority and to the head of each State
| 7 | | agency
affected by or involved in the investigation, if | 8 | | appropriate. The appropriate ultimate jurisdictional authority | 9 | | or agency head shall respond to the summary report within 20 | 10 | | days, in writing, to the Executive Inspector General. The | 11 | | response shall include a description of any corrective or | 12 | | disciplinary action to be imposed.
| 13 | | (b) The summary report of the investigation shall include | 14 | | the following:
| 15 | | (1) A description of any allegations or other | 16 | | information
received by the Executive Inspector General | 17 | | pertinent to the
investigation.
| 18 | | (2) A description of any alleged misconduct discovered | 19 | | in the
course of the investigation.
| 20 | | (3) Recommendations for any corrective or disciplinary
| 21 | | action to be taken in response to any alleged misconduct | 22 | | described in the
report, including but not limited to | 23 | | discharge.
| 24 | | (4) Other information the Executive Inspector General
| 25 | | deems relevant to the investigation or resulting | 26 | | recommendations.
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| 1 | | (c) Within 30 days after receiving a response from the | 2 | | appropriate ultimate jurisdictional authority or agency head | 3 | | under subsection (a),
the Executive Inspector General shall | 4 | | notify the Commission and the Attorney General if the Executive | 5 | | Inspector General believes that a complaint should be filed | 6 | | with the Commission. If the Executive Inspector General desires | 7 | | to file a
complaint with the Commission, the Executive | 8 | | Inspector General shall submit the summary report and | 9 | | supporting documents to the
Attorney General. If the Attorney | 10 | | General concludes that there is insufficient evidence that a | 11 | | violation has occurred, the Attorney General shall notify the | 12 | | Executive Inspector General and the Executive Inspector | 13 | | General shall deliver to the Executive Ethics Commission a copy | 14 | | of the summary report and response from the ultimate | 15 | | jurisdictional authority or agency head.
If the Attorney | 16 | | General determines
that reasonable cause exists to believe that | 17 | | a violation has occurred, then the
Executive Inspector
General, | 18 | | represented by the Attorney
General, may file with the | 19 | | Executive Ethics Commission a complaint.
The complaint shall | 20 | | set
forth the alleged violation and the
grounds that exist to | 21 | | support the complaint. The complaint must be filed with the | 22 | | Commission within 18 months
after the most recent act of the
| 23 | | alleged violation or of a series of alleged violations
except | 24 | | where there is reasonable cause to believe
that fraudulent | 25 | | concealment has occurred. To constitute fraudulent concealment
| 26 | | sufficient to toll this limitations period, there must be an |
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| 1 | | affirmative act or
representation calculated to prevent | 2 | | discovery of the fact that a violation has
occurred.
If a | 3 | | complaint is not filed with the Commission
within 6 months | 4 | | after notice by the Inspector General to the Commission and the
| 5 | | Attorney General, then the Commission may set a meeting of the | 6 | | Commission at
which the Attorney General shall appear and | 7 | | provide a status
report to the Commission.
| 8 | | (c-5) Within 30 days after receiving a response from the | 9 | | appropriate ultimate jurisdictional authority or agency head | 10 | | under subsection (a), if the Executive Inspector General does | 11 | | not believe that a complaint should be filed, the Executive | 12 | | Inspector General shall deliver to the Executive Ethics | 13 | | Commission a statement setting forth the basis for the decision | 14 | | not to file a complaint and a copy of the summary report and | 15 | | response from the ultimate jurisdictional authority or agency | 16 | | head. An Inspector General may also submit a redacted version | 17 | | of the summary report and response from the ultimate | 18 | | jurisdictional authority if the Inspector General believes | 19 | | either contains information that, in the opinion of the | 20 | | Inspector General, should be redacted prior to releasing the | 21 | | report, may interfere with an ongoing investigation, or | 22 | | identifies an informant or complainant. | 23 | | (c-10) If, after reviewing the documents, the Commission | 24 | | believes that further investigation is warranted, the | 25 | | Commission may request that the Executive Inspector General | 26 | | provide additional information or conduct further |
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| 1 | | investigation. The Commission may also appoint a Special | 2 | | Executive Inspector General to investigate or refer the summary | 3 | | report and response from the ultimate jurisdictional authority | 4 | | to the Attorney General for further investigation or review. If | 5 | | the Commission requests the Attorney General to investigate or | 6 | | review, the Commission must notify the Attorney General and the | 7 | | Inspector General. The Attorney General may not begin an | 8 | | investigation or review until receipt of notice from the | 9 | | Commission.
If, after review, the Attorney General determines | 10 | | that reasonable cause exists to believe that a violation has | 11 | | occurred, then the Attorney General may file a complaint with | 12 | | the Executive Ethics Commission. If the Attorney General | 13 | | concludes that there is insufficient evidence that a violation | 14 | | has occurred, the Attorney General shall notify the Executive | 15 | | Ethics Commission and the appropriate Executive Inspector | 16 | | General. | 17 | | (d) A copy of the complaint filed with the Executive Ethics | 18 | | Commission must be served on all respondents named in the
| 19 | | complaint and on each respondent's ultimate jurisdictional | 20 | | authority in
the same manner as process is served under the | 21 | | Code of Civil
Procedure.
| 22 | | (e) A respondent may file objections to the complaint | 23 | | within 30 days after notice of the complaint petition has been
| 24 | | served on the respondent.
| 25 | | (f) The Commission shall meet, either in person or by | 26 | | telephone, at least 30 days after the complaint is served on |
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| 1 | | all respondents
in a closed session to review the sufficiency | 2 | | of the complaint.
The Commission shall
issue notice by | 3 | | certified mail, return receipt requested, to the Executive | 4 | | Inspector General, Attorney General, and all respondents of
the | 5 | | Commission's ruling on the sufficiency of the complaint. If the | 6 | | complaint
is deemed to
sufficiently allege a violation of this | 7 | | Act, then the Commission shall
include a hearing date scheduled | 8 | | within 4 weeks after the date of the notice,
unless all of the | 9 | | parties consent to a later date.
If the complaint is deemed not | 10 | | to sufficiently allege a
violation, then
the Commission shall | 11 | | send by certified mail, return receipt requested,
a notice to | 12 | | the Executive Inspector General, Attorney General, and all | 13 | | respondents of the decision to dismiss the complaint.
| 14 | | (g) On the scheduled date
the Commission shall conduct a | 15 | | closed meeting,
either in person or, if the parties consent, by | 16 | | telephone, on the complaint and
allow all
parties the | 17 | | opportunity to present testimony and evidence.
All such | 18 | | proceedings shall be transcribed.
| 19 | | (h) Within an appropriate time limit set by rules of the | 20 | | Executive
Ethics Commission, the Commission shall (i) dismiss | 21 | | the
complaint, (ii) issue a recommendation of discipline to the
| 22 | | respondent and the respondent's ultimate jurisdictional | 23 | | authority, (iii)
impose an administrative fine upon the | 24 | | respondent, (iv) issue injunctive relief as described in | 25 | | Section 50-10, or (v) impose a combination of (ii) through | 26 | | (iv).
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| 1 | | (i) The proceedings on any complaint filed with the | 2 | | Commission
shall be conducted pursuant to rules promulgated by | 3 | | the Commission.
| 4 | | (j) The Commission may designate hearing officers
to | 5 | | conduct proceedings as determined by rule of the Commission.
| 6 | | (k) In all proceedings before the Commission, the standard | 7 | | of
proof is by a preponderance of the evidence.
| 8 | | (l) Within 30 days after the issuance of a final | 9 | | administrative decision that concludes that a violation | 10 | | occurred, the Executive Ethics Commission shall make public the | 11 | | entire record of proceedings before the Commission, the | 12 | | decision, any recommendation, any discipline imposed, and the | 13 | | response from the agency head or ultimate jurisdictional | 14 | | authority to the Executive Ethics Commission.
| 15 | | (Source: P.A. 96-555, eff. 8-18-09.) | 16 | | (5 ILCS 430/50-5)
| 17 | | Sec. 50-5. Penalties.
| 18 | | (a) A person is guilty of a Class A misdemeanor and subject | 19 | | to a fine of up to $20,000 if that person intentionally
| 20 | | violates any provision of Section 5-15, 5-30, 5-40, or 5-45 or | 21 | | Article 15.
| 22 | | (a-1) In addition to any other penalty that may apply, | 23 | | whether criminal or civil, an An ethics commission may levy an | 24 | | administrative fine for a violation of Section 5-45 of this Act | 25 | | of up to 3 times the total annual compensation that would have |
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| 1 | | been obtained in violation of Section 5-45. | 2 | | (b) A person who intentionally violates any provision
of | 3 | | Section 5-20, 5-35, 5-50, or 5-55 is guilty of a business | 4 | | offense
subject to a fine of at least $1,001 and up to $5,000.
| 5 | | (c) A person who intentionally violates any provision of | 6 | | Article 10 is
guilty of a business
offense and subject to a | 7 | | fine of at least $1,001 and up to $5,000.
| 8 | | (d) Any person who intentionally makes a
false report | 9 | | alleging a violation of any provision of this Act to an ethics
| 10 | | commission,
an inspector general,
the State Police, a State's | 11 | | Attorney, the Attorney General, or any other law
enforcement | 12 | | official is guilty of a Class A misdemeanor and subject to a | 13 | | fine of up to $20,000 .
| 14 | | (e) In addition to any other penalty that may apply, | 15 | | whether criminal or civil, an An ethics commission may levy an | 16 | | administrative fine of up to $20,000 $5,000
against any person
| 17 | | who violates this Act, who intentionally obstructs or | 18 | | interferes with an
investigation
conducted under this Act by an | 19 | | inspector general, or who
intentionally makes a false, | 20 | | frivolous, or bad faith allegation.
| 21 | | (f) In addition to any other penalty that may apply, | 22 | | whether criminal or
civil, a State employee who intentionally | 23 | | violates
any provision of Section 5-5, 5-15, 5-20, 5-30, 5-35, | 24 | | 5-45, or 5-50, Article 10,
Article 15, or Section 20-90 or | 25 | | 25-90 is subject to discipline or discharge by
the
appropriate | 26 | | ultimate
jurisdictional authority.
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| 1 | | (Source: P.A. 96-555, eff. 8-18-09.) | 2 | | Section 10. The Illinois Procurement Code is amended by | 3 | | changing Section 50-60 and by adding Section 50-33 as follows: | 4 | | (30 ILCS 500/50-33 new) | 5 | | Sec. 50-33. Lawful and ethical conduct. | 6 | | (a) No person shall enter into or perform a contract with a | 7 | | State agency or enter into or perform a subcontract under this | 8 | | Code if that person has engaged in conduct, alone or in concert | 9 | | with any other person, relating to the contract or subcontract | 10 | | which would constitute a violation of Section 17-9, Section | 11 | | 17-10, Section 17-24, Article 33, Section 33C-4, or Article 33E | 12 | | of the Criminal Code of 1961, or any similar federal offense. | 13 | | (b) Every bid submitted and contract executed by the State | 14 | | and every subcontract subject to Section 20-120 of this Code | 15 | | shall contain a certification by the bidder, contractor, or | 16 | | subcontractor, respectively, that the bidder, contractor, or | 17 | | subcontractor is not barred from bidding for, entering into, or | 18 | | performing a contract under subsection (a) of this Section and | 19 | | that he or she acknowledges that the chief procurement officer | 20 | | may declare the related contract void if any of the | 21 | | certifications completed pursuant to this subsection (b) are | 22 | | false.
| 23 | | (30 ILCS 500/50-60)
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| 1 | | Sec. 50-60. Voidable contracts.
| 2 | | (a) If any contract or amendment thereto is entered into or | 3 | | purchase
or expenditure of funds is made at any time in | 4 | | violation of this Code or any other law,
the contract or | 5 | | amendment thereto may be declared void by the chief procurement | 6 | | officer or may be
ratified and affirmed,
provided the chief | 7 | | procurement officer determines that ratification is in the
best | 8 | | interests of the
State. If the contract is ratified and | 9 | | affirmed, it shall be without prejudice
to the State's rights | 10 | | to any appropriate damages.
| 11 | | (b) If, during the term of a contract, the chief | 12 | | procurement officer determines
that the contractor is | 13 | | delinquent in the payment of debt as set forth in
Section 50-11 | 14 | | of this Code, the chief procurement officer may declare the | 15 | | contract void if
it determines that voiding the contract is in | 16 | | the best interests of the State.
The Debt Collection Bureau | 17 | | shall adopt rules for the implementation of this
subsection | 18 | | (b).
| 19 | | (c) If, during the term of a contract, the chief | 20 | | procurement officer determines
that the contractor is in | 21 | | violation of Section 50-10.5 of this Code, the
chief | 22 | | procurement officer shall declare the contract void.
| 23 | | (d) If, during the term of a contract, the contracting | 24 | | agency learns from an annual certification or otherwise | 25 | | determines that the contractor no longer qualifies to enter | 26 | | into State contracts by reason of Section 50-5, 50-10, 50-12, |
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| 1 | | 50-14, or 50-14.5 , or 50-33 of this Article, the chief | 2 | | procurement officer may declare the contract void if it | 3 | | determines that voiding the contract is in the best interests | 4 | | of the State. | 5 | | (e) If, during the term of a contract, the chief | 6 | | procurement officer learns from an annual certification or | 7 | | otherwise determines that a subcontractor subject to Section | 8 | | 20-120 no longer qualifies to enter into State contracts by | 9 | | reason of Section 50-5, 50-10, 50-10.5, 50-11, 50-12, 50-14, or | 10 | | 50-14.5 , or 50-33 of this Article, the chief procurement | 11 | | officer may declare the related contract void if it determines | 12 | | that voiding the contract is in the best interests of the | 13 | | State. | 14 | | (f) The changes to this Section made by Public Act 96-795 | 15 | | apply to actions taken by the chief procurement officer on or | 16 | | after July 1, 2010. | 17 | | (Source: P.A. 96-493, eff. 1-1-10; 96-795, eff. 7-1-10 (see | 18 | | Section 5 of P.A. 96-793 for the effective date of changes made | 19 | | by P.A. 96-795); 96-1000, eff. 7-2-10.) | 20 | | Section 15. The Criminal Code of 1961 is amended by | 21 | | changing Sections 33-7, 33E-2, and 33E-7 as follows: | 22 | | (720 ILCS 5/33-7) | 23 | | Sec. 33-7. Public contractor misconduct.
| 24 | | (a) A public contractor; a person seeking a public contract |
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| 1 | | on behalf of himself, herself, or another; an employee of a | 2 | | public
contractor; or a person seeking a public contract on | 3 | | behalf of himself, herself, or another commits public | 4 | | contractor misconduct when, in the performance of, or in | 5 | | connection with, a contract with
the State, a unit of local | 6 | | government, or a school district or in obtaining or seeking to | 7 | | obtain such a contract he or she commits any of
the following | 8 | | acts: | 9 | | (1) intentionally or knowingly makes, uses, or causes | 10 | | to be made or used a false record or statement to conceal, | 11 | | avoid, or decrease an obligation to pay or transmit money | 12 | | or property; | 13 | | (2) knowingly performs an act that he or
she knows he | 14 | | or she is forbidden by law to perform; | 15 | | (3) with intent to obtain a personal advantage for | 16 | | himself, herself, or another, he or she
performs an act in | 17 | | excess of his or her contractual responsibility; | 18 | | (4) solicits or offers or knowingly accepts or provides | 19 | | for the performance of any act a fee or
reward that he or | 20 | | she knows is not authorized by law; or | 21 | | (5) knowingly or intentionally seeks or receives | 22 | | compensation or reimbursement for goods and services he or | 23 | | she purported to deliver or render, but failed to do so | 24 | | pursuant to the terms of the contract, to the unit of State | 25 | | or local government or school district. | 26 | | (b) Sentence. Any person who violates this Section commits |
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| 1 | | a Class 3 felony. Any person convicted of this offense or a | 2 | | similar offense in any state of the United States which | 3 | | contains the same elements of this offense shall be barred for | 4 | | 10 years from the date of conviction from contracting with, | 5 | | employment by, or holding public office with the State or any | 6 | | unit of local government or school district. No corporation | 7 | | shall be barred as a result of a conviction under this Section | 8 | | of any employee or agent of such corporation if the employee so | 9 | | convicted is no longer employed by the corporation and (1) it | 10 | | has been finally adjudicated not guilty or (2) it demonstrates | 11 | | to the government entity with which it seeks to contract, and | 12 | | that entity finds, that the commission of the offense was | 13 | | neither authorized, requested, commanded, nor performed by a | 14 | | director, officer or high managerial agent on behalf of the | 15 | | corporation as provided in paragraph (2) of subsection (a) of | 16 | | Section 5-4 of this Code. | 17 | | (c) The Attorney General or the State's Attorney in the | 18 | | county where the principal office of the unit of local | 19 | | government or school district is located may bring a civil | 20 | | action on behalf of any unit of State or local government to | 21 | | recover a civil penalty from any person who knowingly engages | 22 | | in conduct which violates subsection (a) of this Section in | 23 | | treble the amount of the monetary cost to the unit of State or | 24 | | local government or school district involved in the violation. | 25 | | The Attorney General or State's Attorney shall be entitled to | 26 | | recover reasonable attorney's fees as part of the costs |
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| 1 | | assessed to the defendant. This subsection (c) shall in no way | 2 | | limit the ability of any unit of State or local government or | 3 | | school district to recover moneys or damages regarding public | 4 | | contracts under any other law or ordinance. A civil action | 5 | | shall be barred unless the action is commenced within 6 years | 6 | | after the later of (1) the date on which the conduct | 7 | | establishing the cause of action occurred or (2) the date on | 8 | | which the unit of State or local government or school district | 9 | | knew or should have known that the conduct establishing the | 10 | | cause of action occurred.
| 11 | | (d) This amendatory Act of the 96th General Assembly shall | 12 | | not be construed to create a private right of action. | 13 | | (Source: P.A. 96-575, eff. 8-18-09.)
| 14 | | (720 ILCS 5/33E-2) (from Ch. 38, par. 33E-2)
| 15 | | Sec. 33E-2. Definitions. In this Act:
| 16 | | (a) "Public contract" means any
contract for goods, | 17 | | services or construction let to any person with or
without bid | 18 | | by any unit of State or local government.
| 19 | | (b) "Unit of State or local government" means the State, | 20 | | any unit of state
government or agency thereof, any county or | 21 | | municipal government or committee
or agency thereof, or any | 22 | | other entity which is funded by or expends tax
dollars or the | 23 | | proceeds of publicly guaranteed bonds.
| 24 | | (c) "Change order" means a change in a contract term other | 25 | | than as
specifically provided for in the contract which |
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| 1 | | authorizes or necessitates
any increase or decrease in the cost | 2 | | of the contract or the time to completion.
| 3 | | (d) "Person" means any individual, firm, partnership,
| 4 | | corporation, joint venture or other entity, but does not | 5 | | include a unit
of State or local government.
| 6 | | (e) "Person employed by any unit of State or local | 7 | | government" means
any employee of a unit of State or local | 8 | | government and any person defined in
subsection (d) who is | 9 | | authorized by such unit of State or local government
to act on | 10 | | its behalf in relation to any public contract.
| 11 | | (f) "Sheltered market" has the meaning ascribed to it in | 12 | | Section 8b of the Business Enterprise for Minorities,
Females, | 13 | | and Persons with Disabilities Act.
| 14 | | (g) "Kickback" means any money, fee, commission, credit, | 15 | | gift, gratuity,
thing of value, or compensation of any kind | 16 | | which is provided, directly or
indirectly, to any person | 17 | | employed by any unit of State or local government, prime | 18 | | contractor, prime contractor employee,
subcontractor, or | 19 | | subcontractor employee for the purpose of improperly
obtaining | 20 | | or rewarding favorable treatment in connection with a prime
| 21 | | contract or in connection with a subcontract relating to a | 22 | | prime contract.
| 23 | | (h) "Prime contractor" means any person who has entered | 24 | | into
a public contract.
| 25 | | (i) "Prime contractor employee" means any officer, | 26 | | partner, employee, or
agent of a prime contractor.
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| 1 | | (i-5) "Stringing" means knowingly structuring a contract
| 2 | | or job order to avoid the contract or job order being subject | 3 | | to competitive
bidding requirements.
| 4 | | (j) "Subcontract" means a contract or contractual action | 5 | | entered into by
a prime contractor or subcontractor for the | 6 | | purpose of obtaining goods or
services of any kind under a | 7 | | prime contract.
| 8 | | (k) "Subcontractor" (1) means any person, other than the | 9 | | prime
contractor, who offers to furnish or furnishes any goods | 10 | | or services of any
kind under a prime contract or a subcontract | 11 | | entered into in connection
with such prime contract; and (2) | 12 | | includes any person who offers to furnish
or furnishes goods or | 13 | | services to the prime contractor or a higher tier
| 14 | | subcontractor.
| 15 | | (l) "Subcontractor employee" means any officer, partner, | 16 | | employee, or
agent of a subcontractor.
| 17 | | (Source: P.A. 92-16, eff. 6-28-01.)
| 18 | | (720 ILCS 5/33E-7) (from Ch. 38, par. 33E-7)
| 19 | | Sec. 33E-7. Kickbacks. (a) A person , including a person | 20 | | employed by any unit of State or local government, violates | 21 | | this Section when he knowingly either:
| 22 | | (1) provides, attempts to provide or offers to provide any | 23 | | kickback;
| 24 | | (2) solicits, accepts or attempts to accept any kickback; | 25 | | or
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| 1 | | (3) includes, directly or indirectly, the amount of any | 2 | | kickback
prohibited by paragraphs (1) or (2) of this subsection | 3 | | (a) in the contract
price charged by a subcontractor to a prime | 4 | | contractor or a higher tier
subcontractor or in the contract | 5 | | price charged by a prime contractor to any
unit of State or | 6 | | local government for a public contract.
| 7 | | (b) Any person , including a person employed by any unit of | 8 | | State or local government, violates this Section when he has | 9 | | received an offer of
a kickback, or has been solicited to make | 10 | | a kickback, and fails to report
it to law enforcement | 11 | | officials, including but not limited to the Attorney
General or | 12 | | the State's Attorney for the county in which the contract is to | 13 | | be performed.
| 14 | | (c) A violation of subsection (a) is a Class 3 felony. A
| 15 | | violation of subsection (b) is a Class 4 felony.
| 16 | | (d) Any unit of State or local government may, in a civil | 17 | | action,
recover a civil penalty from any person who knowingly | 18 | | engages in conduct
which violates paragraph (3) of subsection | 19 | | (a) of this Section in twice the
amount of each kickback | 20 | | involved in the violation. This subsection (d)
shall in no way | 21 | | limit the ability of any unit of State or local government
to | 22 | | recover monies or damages regarding public contracts under any | 23 | | other law
or ordinance. A civil action shall be barred unless
| 24 | | the action is commenced within 6 years after the later of (1) | 25 | | the date on
which the conduct establishing the cause of action | 26 | | occurred or (2) the date
on which the unit of State or local |
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| 1 | | government knew or should have known
that the conduct | 2 | | establishing the cause of action occurred.
| 3 | | (Source: P.A. 85-1295.)
| 4 | | Section 20. The Illinois False Claims Act is amended by | 5 | | changing Section 4 as follows:
| 6 | | (740 ILCS 175/4) (from Ch. 127, par. 4104)
| 7 | | Sec. 4. Civil actions for false claims.
| 8 | | (a) Responsibilities of the Attorney General and the | 9 | | Department of
State Police. The Attorney General or the | 10 | | Department of State Police shall diligently investigate
a civil | 11 | | violation under Section 3. If the Attorney General finds that a | 12 | | person violated or is violating Section 3, the Attorney General | 13 | | may bring a civil action under this Section
against the person.
| 14 | | The State shall receive an amount for reasonable expenses | 15 | | that the court finds to have been necessarily incurred by the | 16 | | Attorney General, including reasonable attorneys' fees and | 17 | | costs. All such expenses, fees, and costs shall be awarded | 18 | | against the defendant. The court may award amounts from the | 19 | | proceeds of an action or settlement that it considers | 20 | | appropriate to any governmental entity or program that has been | 21 | | adversely affected by a defendant. The Attorney General, if | 22 | | necessary, shall direct the State Treasurer to make a | 23 | | disbursement of funds as provided in court orders or settlement | 24 | | agreements. |
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| 1 | | (b) Actions by private persons.
| 2 | | (1) A person may bring a civil action
for a violation | 3 | | of Section 3 for the person and for the State. The action
| 4 | | shall be brought in the name of the State. The action may | 5 | | be dismissed
only if the court and the Attorney General | 6 | | give written consent to the
dismissal and their reasons for | 7 | | consenting.
| 8 | | (2) A copy of the complaint and written disclosure of | 9 | | substantially all
material evidence and information the | 10 | | person possesses shall be served on
the State. The | 11 | | complaint shall be filed in camera, shall remain under seal
| 12 | | for at least 60 days, and shall not be served on the | 13 | | defendant until the
court so orders. The State may elect to | 14 | | intervene and proceed with the
action within 60 days after | 15 | | it receives both the complaint and the material
evidence | 16 | | and information.
| 17 | | (3) The State may, for good cause shown, move the court | 18 | | for extensions
of the time during which the complaint | 19 | | remains under seal under paragraph
(2). Any such motions | 20 | | may be supported by affidavits or other submissions
in | 21 | | camera. The defendant shall not be required to respond to | 22 | | any complaint
filed under this Section until 20 days after | 23 | | the complaint is unsealed and
served upon the defendant.
| 24 | | (4) Before the expiration of the 60-day period or any | 25 | | extensions
obtained under paragraph (3), the State shall:
| 26 | | (A) proceed with the action, in which case the |
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| 1 | | action shall be
conducted by the State; or
| 2 | | (B) notify the court that it declines to take over | 3 | | the action, in which
case the person bringing the | 4 | | action shall have the right to conduct the action.
| 5 | | (5) When a person brings an action under this | 6 | | subsection (b), no person
other than the State may | 7 | | intervene or bring a related action based on the
facts | 8 | | underlying the pending action.
| 9 | | (c) Rights of the parties to Qui Tam actions.
| 10 | | (1) If the State proceeds
with the action, it shall | 11 | | have the primary responsibility for prosecuting
the | 12 | | action, and shall not be bound by an act of the person | 13 | | bringing the
action. Such person shall have the right to | 14 | | continue as a party to the
action, subject to the | 15 | | limitations set forth in paragraph (2).
| 16 | | (2)(A) The State may dismiss the action | 17 | | notwithstanding the objections
of the person initiating | 18 | | the action if the person has been notified by the
State of | 19 | | the filing of the motion and the court has provided the | 20 | | person
with an opportunity for a hearing on the motion.
| 21 | | (B) The State may settle the action with the defendant | 22 | | notwithstanding
the objections of the person initiating | 23 | | the action if the court determines,
after a hearing, that | 24 | | the proposed settlement is fair, adequate, and reasonable
| 25 | | under all the circumstances. Upon a showing of good cause, | 26 | | such hearing
may be held in camera.
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| 1 | | (C) Upon a showing by the State that unrestricted | 2 | | participation during
the course of the litigation by the | 3 | | person initiating the action would
interfere with or unduly | 4 | | delay the State's prosecution of the case, or
would be | 5 | | repetitious, irrelevant, or for purposes of harassment, | 6 | | the court
may, in its discretion, impose limitations on the | 7 | | person's participation,
such as:
| 8 | | (i) limiting the number of witnesses the person may | 9 | | call:
| 10 | | (ii) limiting the length of the testimony of such | 11 | | witnesses;
| 12 | | (iii) limiting the person's cross-examination of | 13 | | witnesses; or
| 14 | | (iv) otherwise limiting the participation by the | 15 | | person in the
litigation.
| 16 | | (D) Upon a showing by the defendant that unrestricted | 17 | | participation
during
the course of the litigation by the | 18 | | person initiating the action would be
for purposes of | 19 | | harassment or would cause the defendant undue burden or
| 20 | | unnecessary expense, the court may limit the participation | 21 | | by the person in
the litigation.
| 22 | | (3) If the State elects not to proceed with the action, | 23 | | the person who
initiated the action shall have the right to | 24 | | conduct the action. If the
State so requests, it shall be | 25 | | served with copies of all pleadings filed in
the action and | 26 | | shall be supplied with copies of all deposition transcripts
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| 1 | | (at the State's expense). When a person proceeds with the | 2 | | action, the
court, without limiting the status and rights | 3 | | of the person initiating the
action, may nevertheless | 4 | | permit the State to intervene at a later date upon
a | 5 | | showing of good cause.
| 6 | | (4) Whether or not the State proceeds with the action, | 7 | | upon a showing by
the State that certain actions of | 8 | | discovery by the person initiating the
action would | 9 | | interfere with the State's investigation or prosecution of | 10 | | a
criminal or civil matter arising out of the same facts, | 11 | | the court may stay
such discovery for a period of not more | 12 | | than 60 days. Such a showing shall
be conducted in camera. | 13 | | The court may extend the 60-day period upon a
further | 14 | | showing in camera that the State has pursued the criminal | 15 | | or civil
investigation or proceedings with reasonable | 16 | | diligence and any proposed
discovery in the civil action | 17 | | will interfere with the ongoing criminal or
civil | 18 | | investigation or proceedings.
| 19 | | (5) Notwithstanding subsection (b), the State may | 20 | | elect to pursue its
claim through any alternate remedy | 21 | | available to the State, including any
administrative | 22 | | proceeding to determine a civil money penalty. If any such
| 23 | | alternate remedy is pursued in another proceeding, the | 24 | | person initiating
the action shall have the same rights in | 25 | | such proceeding as such person
would have had if the action | 26 | | had continued under this Section. Any finding
of fact or |
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| 1 | | conclusion of law made in such other proceeding that has | 2 | | become
final shall be conclusive on all parties to an | 3 | | action under this Section.
For purposes of the preceding | 4 | | sentence, a finding or conclusion is final if
it has been | 5 | | finally determined on appeal to the appropriate court, if | 6 | | all
time for filing such an appeal with respect to the | 7 | | finding or conclusion
has expired, or if the finding or | 8 | | conclusion is not subject to judicial review.
| 9 | | (d) Award to Qui Tam plaintiff.
| 10 | | (1) If the State proceeds with an
action brought by a | 11 | | person under subsection (b), such person shall, subject
to | 12 | | the second sentence of this paragraph, receive at least 15% | 13 | | but not more
than 25% of the proceeds of the action or | 14 | | settlement of the claim,
depending upon the extent to which | 15 | | the person substantially contributed to
the prosecution of | 16 | | the action. Where the action is one which the court
finds | 17 | | to be based primarily on disclosures of specific | 18 | | information (other
than information provided by the person | 19 | | bringing the action) relating to
allegations or | 20 | | transactions in a criminal, civil, or administrative
| 21 | | hearing, in a legislative, administrative, or Auditor | 22 | | General's report,
hearing, audit, or investigation, or | 23 | | from the news media, the court may award
such sums as it | 24 | | considers appropriate, but in no case more than 10% of the
| 25 | | proceeds, taking into account the significance of the | 26 | | information and the
role of the person bringing the action |
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| 1 | | in advancing the case to litigation.
Any payment to a | 2 | | person under the first or second sentence of this
paragraph | 3 | | (1) shall be made from the proceeds. Any such person shall | 4 | | also
receive an amount for reasonable expenses which the | 5 | | court finds to have
been necessarily incurred, plus | 6 | | reasonable attorneys' fees and costs.
The State shall also | 7 | | receive an amount for reasonable expenses which the
court | 8 | | finds to have been necessarily incurred by the Attorney | 9 | | General,
including reasonable attorneys' fees and costs. | 10 | | All such expenses, fees, and costs shall be awarded
against | 11 | | the defendant. The court may award amounts from the | 12 | | proceeds of an action or settlement that it considers | 13 | | appropriate to any governmental entity or program that has | 14 | | been adversely affected by a defendant. The Attorney | 15 | | General, if necessary, shall direct the State Treasurer to | 16 | | make a disbursement of funds as provided in court orders or | 17 | | settlement agreements.
| 18 | | (2) If the State does not proceed with an action under | 19 | | this Section, the
person bringing the action or settling | 20 | | the claim shall receive an amount
which the court decides | 21 | | is reasonable for collecting the civil penalty and
damages. | 22 | | The amount shall be not less than 25% and not more than 30% | 23 | | of
the proceeds of the action or settlement and shall be | 24 | | paid out of such
proceeds. Such person shall also receive | 25 | | an amount for reasonable expenses
which the court finds to | 26 | | have been necessarily incurred, plus reasonable
attorneys' |
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| 1 | | fees and costs. All such expenses, fees, and costs shall be
| 2 | | awarded against the defendant. The court may award amounts | 3 | | from the proceeds of an action or settlement that it | 4 | | considers appropriate to any governmental entity or | 5 | | program that has been adversely affected by a defendant. | 6 | | The Attorney General, if necessary, shall direct the State | 7 | | Treasurer to make a disbursement of funds as provided in | 8 | | court orders or settlement agreements.
| 9 | | (3) Whether or not the State proceeds with the action, | 10 | | if the court finds
that the action was brought by a person | 11 | | who planned and initiated the violation
of Section 3 upon | 12 | | which the action was brought, then the court may, to the
| 13 | | extent the court considers appropriate, reduce the share of | 14 | | the proceeds of
the action which the person would otherwise | 15 | | receive under paragraph (1) or
(2) of this subsection (d), | 16 | | taking into account the role of that person in
advancing | 17 | | the case to litigation and any relevant circumstances | 18 | | pertaining
to the violation. If the person bringing the | 19 | | action is convicted of
criminal conduct arising from his or | 20 | | her role in the violation of Section
3, that person shall | 21 | | be dismissed from the civil action and shall not
receive | 22 | | any share of the proceeds of the action. Such dismissal | 23 | | shall not
prejudice the right of the State to continue the | 24 | | action, represented by the Attorney General.
| 25 | | (4) If the State does not proceed with the action and | 26 | | the person
bringing the action conducts the action, the |
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| 1 | | court may award to the
defendant its reasonable attorneys' | 2 | | fees and expenses if the defendant
prevails in the action | 3 | | and the court finds that the claim of the person
bringing | 4 | | the action was clearly frivolous, clearly vexatious, or | 5 | | brought
primarily for purposes of harassment.
| 6 | | (e) Certain actions barred.
| 7 | | (1) No court shall have jurisdiction over an
action | 8 | | brought by a former or present member of the Guard under | 9 | | subsection
(b) of this Section against a member of the | 10 | | Guard arising out of such
person's service in the Guard.
| 11 | | (2)(A) No court shall have jurisdiction over an action | 12 | | brought under
subsection (b) against a member of the | 13 | | General Assembly, a member of the
judiciary, or an exempt | 14 | | official if the action is based on evidence or
information | 15 | | known to the State when the action was brought.
| 16 | | (B) For purposes of this paragraph (2), "exempt | 17 | | official" means any of
the following officials in State | 18 | | service: directors of departments
established under the | 19 | | Civil Administrative Code of Illinois, the Adjutant
| 20 | | General, the Assistant Adjutant General, the Director of | 21 | | the State
Emergency Services and Disaster Agency, members | 22 | | of the boards and
commissions, and all other positions | 23 | | appointed by the Governor by and with
the consent of the | 24 | | Senate.
| 25 | | (3) In no event may a person bring an action under | 26 | | subsection (b) which
is based upon allegations or |
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| 1 | | transactions which are the subject of a civil
suit or an | 2 | | administrative civil money penalty proceeding in which the | 3 | | State
is already a party.
| 4 | | (4)(A) The court shall dismiss an action or claim under | 5 | | this Section, unless opposed by the State, if substantially | 6 | | the same allegations or transactions as alleged in the | 7 | | action or claim were publicly disclosed: No court shall | 8 | | have jurisdiction over an action under this
Section
based | 9 | | upon the public disclosure of allegations or transactions | 10 | | (i) in a
criminal, civil, or administrative | 11 | | hearing in which the State or its agent is a party; , | 12 | | (ii) in a legislative,
administrative, or Auditor | 13 | | General, or other State General's report, hearing, | 14 | | audit, or
investigation ; , or | 15 | | (iii) from the news media, | 16 | | unless the action is brought by the
Attorney General or the | 17 | | person bringing the action is an original source of
the | 18 | | information.
| 19 | | (B) For purposes of this paragraph (4), "original | 20 | | source" means an
individual who either (i) prior to a | 21 | | public disclosure under subsection (e)(4)(A), has | 22 | | voluntarily disclosed to the State the information on which | 23 | | allegations or transactions in a claim are based, or (ii) | 24 | | who has knowledge that is independent of and materially | 25 | | adds to the publicly disclosed allegations or | 26 | | transactions, and who has voluntarily provided the |
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| 1 | | information to the State before filing an action under this | 2 | | Section. who has direct and independent knowledge of the | 3 | | information on
which the allegations are based and has | 4 | | voluntarily provided the
information to the State before | 5 | | filing an action under this Section which
is based on the | 6 | | information.
| 7 | | (f) State not liable for certain expenses. The State is not | 8 | | liable for
expenses which a person incurs in bringing an action | 9 | | under this Section.
| 10 | | (g) Relief from retaliatory actions. | 11 | | (1) In general, any employee, contractor, or agent | 12 | | shall be is entitled to all relief necessary to make that | 13 | | employee, contractor, or agent whole, if that employee, | 14 | | contractor, or agent is discharged, demoted, suspended, | 15 | | threatened,
harassed, or in any other manner discriminated | 16 | | against in the terms and
conditions of employment because | 17 | | of lawful acts done
by the employee, contractor, or agent | 18 | | on behalf of the employee, contractor, or agent or | 19 | | associated others in furtherance of an action under this | 20 | | Section or other efforts to stop one or more violations of | 21 | | this Act. | 22 | | (2) Relief under paragraph (1) shall include | 23 | | reinstatement with the same seniority status that the | 24 | | employee, contractor, or agent
would have had but for the | 25 | | discrimination, 2 times the amount of back pay,
interest on | 26 | | the back pay, and compensation for any special damages |
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| 1 | | sustained
as a result of the discrimination, including | 2 | | litigation costs and
reasonable attorneys' fees. An action | 3 | | under this subsection (g) may be brought in the
appropriate | 4 | | circuit court for the relief provided in this subsection | 5 | | (g).
| 6 | | (3) A civil action under this subsection may not be | 7 | | brought more than 3 years after the date when the | 8 | | retaliation occurred. | 9 | | (Source: P.A. 96-1304, eff. 7-27-10.)
| 10 | | Section 99. Effective date. This Act takes effect upon | 11 | | becoming law.".
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