HR1191 97TH GENERAL ASSEMBLY

HR1191 LRB097 22318 JWD 71073 r

HOUSE RESOLUTION

WHEREAS, Illinois State Representative Derrick Smith, representing the 10th Representative District in the State of Illinois, was arrested on March 13, 2012, by federal agents on the charge of violating 18 U.S.C. § 666(a)(1)(B), namely that Representative Smith accepted a cash bribe in exchange for recommending an Early Childhood Construction Grant (ECC Grant) to the Capital Development Board, an Illinois State agency; and

WHEREAS, On March 12, 2012, a Criminal Complaint was filed in the United States District Court for the Northern District of Illinois, Eastern Division, against Representative Smith alleging that Representative Smith violated 18 U.S.C. § 666(a)(1)(B) by accepting a cash bribe in exchange for recommending an ECC Grant to the Capital Development Board; and

WHEREAS, Attached to the Criminal Complaint was an Affidavit sworn to and signed by Special Agent Bryan M. Butler of the Federal Bureau of Investigation (Butler Affidavit), that contained numerous factual allegations supporting the ultimate allegation that Representative Smith violated 18 U.S. C. § 666(a)(1)(B) by accepting a cash bribe in exchange for recommending an ECC Grant to the Capital Development Board; and

WHEREAS, The Butler Affidavit alleges that Representative Smith was covertly recorded engaging in several discussions with an individual cooperating with the federal government, known as the "Cooperating Source," between December, 2011 and March, 2012; and

WHEREAS, The Butler Affidavit alleges that Representative Smith and the Cooperating Source were covertly recorded on several occasions in which Representative Smith indicated that, in exchange for a cash bribe, Representative Smith would be willing to write a letter on behalf of a daycare center in support of an ECC Grant from the Capital Development Board; and

WHEREAS, The Butler Affidavit alleges that Representative Smith and the Cooperating Source were covertly recorded discussing on several occasions that the cash bribe Representative Smith would accept in exchange for writing that letter of support would be in the amount of $7,000; and

WHEREAS, The Butler Affidavit alleges that Representative Smith did in fact sign a letter of support for an ECC Grant for the above-mentioned daycare center, and that he did so on official state letterhead; and

WHEREAS, The Butler Affidavit alleges that, in exchange for writing this letter of support, Representative Smith did in fact accept $7,000 in cash; and

WHEREAS, On March 21, 2012, under House Rule 91, 5 members of the Illinois House of Representatives filed a Petition containing suggested charges against Representative Smith that outlined the allegations contained in the Criminal Complaint and the Butler Affidavit (Petition); and

WHEREAS, Under House Rule 91, following the filing of the Petition on March 21, 2012, the House Special Investigating Committee (House SIC) was formed, consisting of 3 members appointed by the Speaker of the House and 3 members appointed by the Minority Leader of the House; and

WHEREAS, On April 10, 2012, a federal grand jury indicted Representative Smith on the charge of violating 18 U.S.C. § 666(a)(1)(B), which indictment further contained a forfeiture allegation under 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c) for unrecovered proceeds approximating $4,500 of the cash bribe that Representative Smith was alleged to have received; and

WHEREAS, The House SIC held a public hearing on March 27, 2012, at which Representative Jim Sacia, one of the signatories to the Petition, submitted a suggested Charge as follows: "Representative Smith provided an official letter of support on his letterhead for a daycare owner's application for a state grant from the [Illinois] Capital Development Board in exchange for personally accepting a $7,000 bribe."; and

WHEREAS, The House SIC engaged in written and oral communications with the United States Attorney for the Northern District of Illinois in an attempt to determine (1) whether the House SIC could obtain evidence in the U.S. Attorney's possession, and (2) whether the U.S. Attorney would consider any independent investigation by the House SIC to be an interference with the federal investigation; and

WHEREAS, The U.S. Attorney informed the House SIC that he could not provide the House SIC with any information or evidence in his possession and that he would consider an independent investigation by the House SIC to constitute an interference with the federal investigation, which he characterized as "ongoing"; and

WHEREAS, The House SIC held public hearings on April 26, 2012, and on May 10, 2012; and

WHEREAS, The House SIC entered into the Record eleven exhibits, including Exhibit 11, which was received from Representative Smith's counsel and which was entered into the Record by unanimous consent of the House SIC members; and

WHEREAS, The exhibits, public notices, and transcripts of hearings are included in the House SIC Record, available for public view on the General Assembly's website; and

WHEREAS, The House SIC Record is adopted and incorporated herein as if fully set forth; and

WHEREAS, The House SIC gave ample notice to Representative Smith and his attorney of each and every hearing, and confirmed with Representative Smith's attorney that he had received notice; and

WHEREAS, While the House SIC gave Representative Smith the opportunity to testify under oath, he declined to do so; and

WHEREAS, While the House SIC gave Representative Smith's attorney the opportunity to specifically admit or deny various allegations in the Butler Affidavit, he declined to do so; and

WHEREAS, The House SIC gave Representative Smith the opportunity to provide the House SIC with any information he deemed relevant to the House SIC's investigation; and

WHEREAS, The Butler Affidavit contains lengthy excerpts of alleged statements that were recorded and attributed to Representative Smith, indicating that Representative Smith was intentionally and knowingly trading a letter of support for an ECC Grant for a cash bribe of $7,000; and

WHEREAS, The House SIC unanimously found that reasonable grounds existed to prefer a Charge against Representative Smith, to wit: "Representative Derrick Smith abused the power of his office by participating in a scheme to obtain a personal benefit in exchange for his official acts."; and

WHEREAS, The Charge was supported by the following Specifications:

(1) Representative Smith, in his official capacity as a State Representative, has an obligation to faithfully discharge his duties in the best interests of the people of the State of Illinois and not for his own personal benefit;

(2) During the time period beginning on or about December, 2011 through March, 2012, Representative Smith agreed that, in exchange for a cash bribe, he would provide an official letter of support for a daycare's Early Childhood Construction Grant to the Illinois Capital Development Board;

(3) On or about March 1, 2012, Representative Smith did, in fact, sign this official letter of support in his official capacity as a State Representative and planned or intended for that letter to be submitted to the Illinois Capital Development Board;

(4) On or about March 10, 2012, Representative Smith did, in fact, receive a cash bribe in exchange for providing this official letter of support;

(5) Accepting a cash bribe in exchange for an official act, or even plotting or attempting to do so, constitutes a breach of Representative Smith's obligation as a public official to faithfully discharge his duties in the best interests of the people of the State of Illinois and warrants disciplinary action by the House of Representatives; and

WHEREAS, Under House Rule 93, the House SIC appointed Representatives Lou Lang and Jim Durkin to serve as the House Managers to present the case for disciplinary action against Representative Smith; and

WHEREAS, Under House Rule 94, a House Select Committee on Discipline (Select Committee) was formed, with 6 Members appointed by the Speaker of the House, including Representative Barbara Flynn Currie as Chairperson, and 6 Members appointed by the Minority Leader of the House, including Representative Chapin Rose as the Minority Spokesman; and

WHEREAS, The Select Committee held a Final Hearing on July 19, 2012; and

WHEREAS, Representative Smith declined to appear at the Final Hearing, but was represented by counsel in attendance on his behalf; and

WHEREAS, The Select Committee considered portions of the Butler Affidavit that were admitted into evidence by stipulation as part of Select Committee Group Exhibit 4; and

WHEREAS, Those portions of the Butler Affidavit were accepted as credible evidence by the Select Committee; and

WHEREAS, At the Final Hearing, the House Managers called Representative Smith as a witness to testify, but Representative Smith declined to do so; and

WHEREAS, At the conclusion of the presentation of the evidence and argument at the Final Hearing, the Select Committee recessed to deliberate over the evidence; and

WHEREAS, After this consideration, the Select Committee re-convened for the purpose of taking a record vote on the Charge and Specifications; and

WHEREAS, The Select Committee unanimously voted to find Representative Smith at fault on the Charge and on each Specification; and

WHEREAS, Following this finding of fault, the Select Committee considered the appropriate penalty to recommend to the House of Representatives; and

WHEREAS, By a vote of 11 Members voting "yes" and one member voting "no," the Select Committee adopted a recommendation that Representative Smith be expelled from the House of Representatives; and

WHEREAS, Under House Rule 96, the Select Committee prepared and filed a Report with the House Clerk; and

WHEREAS, The Report of the Select Committee is adopted and incorporated herein as if fully set forth; and

WHEREAS, In its Report, the Select Committee determined that credible evidence existed that Representative Smith engaged in and carried out a plot to write an official letter of support to a daycare center for a capital grant in exchange for a bribe of $7,000 in cash; and

WHEREAS, In its Report, the Select Committee properly concluded that the principal purpose of disciplinary proceedings before the House is not to punish a Member but to protect the public from official misbehavior and to preserve the people's trust in their representatives and in the General Assembly as a whole; and

WHEREAS, In its Report, the Select Committee properly determined that Representative Smith's refusal to testify could be considered not to suggest the truth of the evidence against him but because a public official owes the people of this State an obligation to affirmatively assure them that he has put the interests of the people before his own and to assure them that he did not, in fact, trade an official act for a cash bribe; and

WHEREAS, In its Report, the Select Committee emphasized that any consideration of Representative Smith's refusal to testify was ancillary to the credible evidence presented against Representative Smith, which by itself was sufficient to reach a finding of fault on the Charge and each of the Specifications; and

WHEREAS, In its Report, the Select Committee, by a vote of 11 to one, determined that expulsion was the only appropriate remedy given the credible evidence against Representative Smith and given that the Charge against him was a breach of the public trust of the highest order; and

WHEREAS, The House finds that the Select Committee properly interpreted House Rule 95(c), including the waiver of that Rule's protection, in all respects; and

WHEREAS, The Select Committee Exhibits, the Procedural Rules adopted by Chairperson Currie, and the transcripts of proceedings before the Select Committee are adopted and incorporated herein as if fully set forth; and

WHEREAS, Article 4, Section 6(d) of the Illinois Constitution provides that no Member shall be expelled by either house of the General Assembly, except by a vote of two-thirds of the Members elected to that house; and

WHEREAS, House Rule 97(f) provides that a resolution the effect of which is to expel a member may be adopted only by the affirmative vote of 79 Members elected; therefore be it

RESOLVED, BY THE HOUSE OF REPRESENTATIVES OF THE NINETY-SEVENTH GENERAL ASSEMBLY OF THE STATE OF ILLINOIS, That the House of Representatives finds Representative Smith to be At Fault on the Charge and on each of the Specifications against him as preferred by the House Special Investigating Committee and as determined by the House Select Committee on Discipline; and be it further

RESOLVED, That Representative Smith is hereby Expelled from the House of Representatives, the Expulsion to take effect immediately upon adoption of this Resolution by a record vote of 79 Members elected.