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1 | AN ACT concerning whistleblowers.
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2 | Be it enacted by the People of the State of Illinois,
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3 | represented in the General Assembly:
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4 | Section 5. The Whistleblower Reward and Protection Act is | |||||||||||||||||||||
5 | amended by changing Sections 4 and 8 as follows:
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6 | (740 ILCS 175/4) (from Ch. 127, par. 4104)
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7 | Sec. 4. Civil actions for false claims.
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8 | (a) Responsibilities of the Attorney General and the | |||||||||||||||||||||
9 | Department of
State Police. The Department of State Police | |||||||||||||||||||||
10 | shall diligently investigate
a civil violation under Section 3, | |||||||||||||||||||||
11 | except for civil violations under
Section 3 that relate to and | |||||||||||||||||||||
12 | adversely affect primarily the system of State
colleges and | |||||||||||||||||||||
13 | universities, any school district, any public community | |||||||||||||||||||||
14 | college
district, any municipality, municipal corporations, | |||||||||||||||||||||
15 | units of local government,
or any combination of the above | |||||||||||||||||||||
16 | under an intergovernmental agreement that
includes provisions | |||||||||||||||||||||
17 | for a governing board of the agency created by the
agreement. | |||||||||||||||||||||
18 | The Attorney General may bring a civil action under this | |||||||||||||||||||||
19 | Section
against any person that has violated or is violating | |||||||||||||||||||||
20 | Section 3.
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21 | (b) Actions by private persons.
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22 | (1) A person may bring a civil action
for a violation | |||||||||||||||||||||
23 | of Section 3 for the person and for the State. The action
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24 | shall be brought in the name of the State. The action may | |||||||||||||||||||||
25 | be dismissed
only if the court and the Attorney General | |||||||||||||||||||||
26 | give written consent to the
dismissal and their reasons for | |||||||||||||||||||||
27 | consenting.
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28 | (2) A copy of the complaint and written disclosure of | |||||||||||||||||||||
29 | substantially all
material evidence and information the | |||||||||||||||||||||
30 | person possesses shall be served on
the State. The | |||||||||||||||||||||
31 | complaint shall be filed in camera, shall remain under seal
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32 | for at least 60 days, and shall not be served on the |
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1 | defendant until the
court so orders. The State may elect to | ||||||
2 | intervene and proceed with the
action within 60 days after | ||||||
3 | it receives both the complaint and the material
evidence | ||||||
4 | and information.
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5 | (3) The State may, for good cause shown, move the court | ||||||
6 | for extensions
of the time during which the complaint | ||||||
7 | remains under seal under paragraph
(2). Any such motions | ||||||
8 | may be supported by affidavits or other submissions
in | ||||||
9 | camera. The defendant shall not be required to respond to | ||||||
10 | any complaint
filed under this Section until 20 days after | ||||||
11 | the complaint is unsealed and
served upon the defendant.
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12 | (4) Before the expiration of the 60-day period or any | ||||||
13 | extensions
obtained under paragraph (3), the State shall:
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14 | (A) proceed with the action, in which case the | ||||||
15 | action shall be
conducted by the State; or
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16 | (B) notify the court that it declines to take over | ||||||
17 | the action, in which
case the person bringing the | ||||||
18 | action shall have the right to conduct the action.
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19 | (5) When a person brings an action under this subsection | ||||||
20 | (b), no person
other than the State may intervene or bring a | ||||||
21 | related action based on the
facts underlying the pending | ||||||
22 | action.
| ||||||
23 | (c) Rights of the parties to Qui Tam actions.
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24 | (1) If the State proceeds
with the action, it shall | ||||||
25 | have the primary responsibility for prosecuting
the | ||||||
26 | action, and shall not be bound by an act of the person | ||||||
27 | bringing the
action. Such person shall have the right to | ||||||
28 | continue as a party to the
action, subject to the | ||||||
29 | limitations set forth in paragraph (2).
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30 | (2) (A) The State may dismiss the action | ||||||
31 | notwithstanding the objections
of the person | ||||||
32 | initiating the action if the person has been notified | ||||||
33 | by the
State of the filing of the motion and the court | ||||||
34 | has provided the person
with an opportunity for a | ||||||
35 | hearing on the motion.
| ||||||
36 | (B) The State may settle the action with the |
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1 | defendant notwithstanding
the objections of the person | ||||||
2 | initiating the action if the court determines,
after a | ||||||
3 | hearing, that the proposed settlement is fair, | ||||||
4 | adequate, and reasonable
under all the circumstances. | ||||||
5 | Upon a showing of good cause, such hearing
may be held | ||||||
6 | in camera.
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7 | (C) Upon a showing by the State that unrestricted | ||||||
8 | participation during
the course of the litigation by | ||||||
9 | the person initiating the action would
interfere with | ||||||
10 | or unduly delay the State's prosecution of the case, or
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11 | would be repetitious, irrelevant, or for purposes of | ||||||
12 | harassment, the court
may, in its discretion, impose | ||||||
13 | limitations on the person's participation,
such as:
| ||||||
14 | (i) limiting the number of witnesses the | ||||||
15 | person may call:
| ||||||
16 | (ii) limiting the length of the testimony of | ||||||
17 | such witnesses;
| ||||||
18 | (iii) limiting the person's cross-examination | ||||||
19 | of witnesses; or
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20 | (iv) otherwise limiting the participation by | ||||||
21 | the person in the
litigation.
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22 | (D) Upon a showing by the defendant that | ||||||
23 | unrestricted participation
during
the course of the | ||||||
24 | litigation by the person initiating the action would be
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25 | for purposes of harassment or would cause the defendant | ||||||
26 | undue burden or
unnecessary expense, the court may | ||||||
27 | limit the participation by the person in
the | ||||||
28 | litigation.
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29 | (3) If the State elects not to proceed with the action, | ||||||
30 | the person who
initiated the action shall have the right to | ||||||
31 | conduct the action. If the
State so requests, it shall be | ||||||
32 | served with copies of all pleadings filed in
the action and | ||||||
33 | shall be supplied with copies of all deposition transcripts
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34 | (at the State's expense). When a person proceeds with the | ||||||
35 | action, the
court, without limiting the status and rights | ||||||
36 | of the person initiating the
action, may nevertheless |
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1 | permit the State to intervene at a later date upon
a | ||||||
2 | showing of good cause.
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3 | (4) Whether or not the State proceeds with the action, | ||||||
4 | upon a showing by
the State that certain actions of | ||||||
5 | discovery by the person initiating the
action would | ||||||
6 | interfere with the State's investigation or prosecution of | ||||||
7 | a
criminal or civil matter arising out of the same facts, | ||||||
8 | the court may stay
such discovery for a period of not more | ||||||
9 | than 60 days. Such a showing shall
be conducted in camera. | ||||||
10 | The court may extend the 60-day period upon a
further | ||||||
11 | showing in camera that the State has pursued the criminal | ||||||
12 | or civil
investigation or proceedings with reasonable | ||||||
13 | diligence and any proposed
discovery in the civil action | ||||||
14 | will interfere with the ongoing criminal or
civil | ||||||
15 | investigation or proceedings.
| ||||||
16 | (5) Notwithstanding subsection (b), the State may | ||||||
17 | elect to pursue its
claim through any alternate remedy | ||||||
18 | available to the State, including any
administrative | ||||||
19 | proceeding to determine a civil money penalty. If any such
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20 | alternate remedy is pursued in another proceeding, the | ||||||
21 | person initiating
the action shall have the same rights in | ||||||
22 | such proceeding as such person
would have had if the action | ||||||
23 | had continued under this Section. Any finding
of fact or | ||||||
24 | conclusion of law made in such other proceeding that has | ||||||
25 | become
final shall be conclusive on all parties to an | ||||||
26 | action under this Section.
For purposes of the preceding | ||||||
27 | sentence, a finding or conclusion is final if
it has been | ||||||
28 | finally determined on appeal to the appropriate court, if | ||||||
29 | all
time for filing such an appeal with respect to the | ||||||
30 | finding or conclusion
has expired, or if the finding or | ||||||
31 | conclusion is not subject to judicial review.
| ||||||
32 | (d) Award to Qui Tam plaintiff.
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33 | (1) If the State proceeds with an
action brought by a | ||||||
34 | person under subsection (b), such person shall, subject
to | ||||||
35 | the second sentence of this paragraph, receive at least 15% | ||||||
36 | but not more
than 25% of the proceeds of the action or |
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1 | settlement of the claim,
depending upon the extent to which | ||||||
2 | the person substantially contributed to
the prosecution of | ||||||
3 | the action. Where the action is one which the court
finds | ||||||
4 | to be based primarily on disclosures of specific | ||||||
5 | information (other
than information provided by the person | ||||||
6 | bringing the action) relating to
allegations or | ||||||
7 | transactions in a criminal, civil, or administrative
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8 | hearing, in a legislative, administrative, or Auditor | ||||||
9 | General's report,
hearing, audit, or investigation, or | ||||||
10 | from the news media, the court may award
such sums as it | ||||||
11 | considers appropriate, but in no case more than 10% of the
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12 | proceeds, taking into account the significance of the | ||||||
13 | information and the
role of the person bringing the action | ||||||
14 | in advancing the case to litigation.
Any payment to a | ||||||
15 | person under the first or second sentence of this
paragraph | ||||||
16 | (1) shall be made from the proceeds. Any such person shall | ||||||
17 | also
receive an amount for reasonable expenses which the | ||||||
18 | court finds to have
been necessarily incurred, plus | ||||||
19 | reasonable attorneys' fees and costs.
The State of Illinois | ||||||
20 | shall also receive an amount for reasonable expenses which | ||||||
21 | the
court finds to have been necessarily incurred by the | ||||||
22 | Attorney General,
including reasonable attorneys' fees and | ||||||
23 | costs, and the amount received
by the State of Illinois, | ||||||
24 | exclusive of any proceeds, reasonable expenses, reasonable | ||||||
25 | attorneys' fees and costs that have been awarded to a Qui | ||||||
26 | Tam plaintiff or any entity other than the State of | ||||||
27 | Illinois or a State agency, shall be deposited in the | ||||||
28 | Whistleblower Reward and Protection Fund created
under | ||||||
29 | this Act. All such expenses, fees, and costs shall be | ||||||
30 | awarded
against the defendant.
When an action under this | ||||||
31 | Act is brought on behalf of the system of State colleges | ||||||
32 | and universities, any school
district, any public | ||||||
33 | community college district, any municipality, any
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34 | municipal corporation, any unit of local government, or any | ||||||
35 | combination of
the above under an intergovernmental | ||||||
36 | agreement that has been adversely affected
by a defendant, |
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1 | the court shall
may award all proceeds of an action or | ||||||
2 | settlement of the claim to the affected governmental | ||||||
3 | entity, minus reasonable expenses, attorneys' fees, costs, | ||||||
4 | and proceeds that have been awarded to a Qui Tam plaintiff | ||||||
5 | and minus an amount for reasonable expenses that the court | ||||||
6 | finds to have been necessarily incurred by the Attorney | ||||||
7 | General, including reasonable attorneys' fees and costs.
| ||||||
8 | such sums as it considers appropriate
to the affected | ||||||
9 | entity, specifying in its order the amount to be awarded to
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10 | the entity from the net proceeds that are deposited in the | ||||||
11 | Whistleblower
Reward and Protection Fund.
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12 | (2) If the State does not proceed with an action under | ||||||
13 | this Section, the
person bringing the action or settling | ||||||
14 | the claim shall receive an amount
which the court decides | ||||||
15 | is reasonable for collecting the civil penalty and
damages. | ||||||
16 | The amount shall be not less than 25% and not more than 30% | ||||||
17 | of
the proceeds of the action or settlement and shall be | ||||||
18 | paid out of such
proceeds. Such person shall also receive | ||||||
19 | an amount for reasonable expenses
which the court finds to | ||||||
20 | have been necessarily incurred, plus reasonable
attorneys' | ||||||
21 | fees and costs. All such expenses, fees, and costs shall be
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22 | awarded against the defendant.
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23 | (3) Whether or not the State proceeds with the action, | ||||||
24 | if the court finds
that the action was brought by a person | ||||||
25 | who planned and initiated the violation
of Section 3 upon | ||||||
26 | which the action was brought, then the court may, to the
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27 | extent the court considers appropriate, reduce the share of | ||||||
28 | the proceeds of
the action which the person would otherwise | ||||||
29 | receive under paragraph (1) or
(2) of this subsection (d), | ||||||
30 | taking into account the role of that person in
advancing | ||||||
31 | the case to litigation and any relevant circumstances | ||||||
32 | pertaining
to the violation. If the person bringing the | ||||||
33 | action is convicted of
criminal conduct arising from his or | ||||||
34 | her role in the violation of Section
3, that person shall | ||||||
35 | be dismissed from the civil action and shall not
receive | ||||||
36 | any share of the proceeds of the action. Such dismissal |
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1 | shall not
prejudice the right of the State to continue the | ||||||
2 | action.
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3 | (4) If the State does not proceed with the action and | ||||||
4 | the person
bringing the action conducts the action, the | ||||||
5 | court may award to the
defendant its reasonable attorneys' | ||||||
6 | fees and expenses if the defendant
prevails in the action | ||||||
7 | and the court finds that the claim of the person
bringing | ||||||
8 | the action was clearly frivolous, clearly vexatious, or | ||||||
9 | brought
primarily for purposes of harassment.
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10 | (e) Certain actions barred.
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11 | (1) No court shall have jurisdiction over an
action | ||||||
12 | brought by a former or present member of the Guard under | ||||||
13 | subsection
(b) of this Section against a member of the | ||||||
14 | Guard arising out of such
person's service in the Guard.
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15 | (2) (A) No court shall have jurisdiction over an action | ||||||
16 | brought under
subsection (b) against a member of the | ||||||
17 | General Assembly, a member of the
judiciary, or an | ||||||
18 | exempt official if the action is based on evidence or
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19 | information known to the State when the action was | ||||||
20 | brought.
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21 | (B) For purposes of this paragraph (2), "exempt | ||||||
22 | official" means any of
the following officials in State | ||||||
23 | service: directors of departments
established under | ||||||
24 | the Civil Administrative Code of Illinois, the | ||||||
25 | Adjutant
General, the Assistant Adjutant General, the | ||||||
26 | Director of the State
Emergency Services and Disaster | ||||||
27 | Agency, members of the boards and
commissions, and all | ||||||
28 | other positions appointed by the Governor by and with
| ||||||
29 | the consent of the Senate.
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30 | (3) In no event may a person bring an action under | ||||||
31 | subsection (b) which
is based upon allegations or | ||||||
32 | transactions which are the subject of a civil
suit or an | ||||||
33 | administrative civil money penalty proceeding in which the | ||||||
34 | State
is already a party.
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35 | (4) (A) No court shall have jurisdiction over an | ||||||
36 | action under this
Section
based upon the public |
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1 | disclosure of allegations or transactions in a
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2 | criminal, civil, or administrative hearing, in a | ||||||
3 | legislative,
administrative, or Auditor General's | ||||||
4 | report, hearing, audit, or
investigation, or from the | ||||||
5 | news media, unless the action is brought by the
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6 | Attorney General or the person bringing the action is | ||||||
7 | an original source of
the information.
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8 | (B) For purposes of this paragraph (4), "original | ||||||
9 | source" means an
individual who has direct and | ||||||
10 | independent knowledge of the information on
which the | ||||||
11 | allegations are based and has voluntarily provided the
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12 | information to the State before filing an action under | ||||||
13 | this Section which
is based on the information.
| ||||||
14 | (f) State not liable for certain expenses. The State is not | ||||||
15 | liable for
expenses which a person incurs in bringing an action | ||||||
16 | under this Section.
| ||||||
17 | (g) Any employee who is discharged, demoted, suspended, | ||||||
18 | threatened,
harassed, or in any other manner discriminated | ||||||
19 | against in the terms and
conditions of employment by his or her | ||||||
20 | employer because of lawful acts done
by the employee on behalf | ||||||
21 | of the employee or others in furtherance of an action
under | ||||||
22 | this Section, including investigation for, initiation of, | ||||||
23 | testimony
for, or assistance in an action filed or to be filed | ||||||
24 | under this Section,
shall be entitled to all relief necessary | ||||||
25 | to make the employee whole. Such
relief shall include | ||||||
26 | reinstatement with the seniority status such employee
would | ||||||
27 | have had but for the discrimination, 2 times the amount of back | ||||||
28 | pay,
interest on the back pay, and compensation for any special | ||||||
29 | damages sustained
as a result of the discrimination, including | ||||||
30 | litigation costs and
reasonable attorneys' fees. An employee | ||||||
31 | may bring an action in the
appropriate circuit court for the | ||||||
32 | relief provided in this subsection (g).
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33 | (Source: P.A. 89-260, eff. 1-1-96.)
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34 | (740 ILCS 175/8) (from Ch. 127, par. 4108)
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35 | Sec. 8. Funds; Grants.
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1 | (a) There is hereby created the Whistleblower Reward and | ||||||
2 | Protection
Fund as a special fund in the State Treasury. All | ||||||
3 | proceeds of an action or
settlement of a claim brought under | ||||||
4 | this Act by the State of Illinois, exclusive of any payment of | ||||||
5 | proceeds, reasonable expenses, reasonable attorneys' fees, and | ||||||
6 | costs to a Qui Tam plaintiff or any governmental entity other | ||||||
7 | than the State of Illinois pursuant to subsection (d) of | ||||||
8 | Section 4 of this Act, shall be deposited in the Fund.
| ||||||
9 | (b) Monies in the Fund shall be allocated, subject to | ||||||
10 | appropriation, as
follows: One-sixth of the monies shall be | ||||||
11 | paid to the Attorney General and
one-sixth of the monies shall | ||||||
12 | be paid to the Department of State Police for
State law | ||||||
13 | enforcement purposes. The remaining two-thirds of the monies in
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14 | the Fund shall be used for payment of awards to Qui Tam
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15 | plaintiffs, for attorneys' fees and expenses necessarily | ||||||
16 | incurred by the Attorney General and for payment of awards to | ||||||
17 | the State of Illinois. , and as otherwise specified in
this | ||||||
18 | Act. The Attorney General shall direct the State Treasurer to | ||||||
19 | make
disbursement of funds to the State of Illinois as provided | ||||||
20 | in court orders setting the State of Illinois'
those awards,
| ||||||
21 | fees, and expenses. The State Treasurer shall transfer the | ||||||
22 | remaining funds
any fund balances
in excess of those required | ||||||
23 | for these purposes to the General Revenue Fund.
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24 | (Source: P.A. 87-662.)
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