Executive Order Number 04-16
EXECUTIVE ORDER 2016-04
Executive Order Updating And Strengthening Administrative Order 6 (2003)
WHEREAS, the Governor has the constitutional authority, pursuant to Section 2 of Article XIII of the Illinois Constitution, to establish and enforce ethical standards for the executive branch; and
WHEREAS, the Governor’s authority under Section 2 of Article XIII of the Illinois Constitution allows the Governor to establish and enforce ethical standards above and beyond those already provided by legislation, regulation, or any employment contract (see Illinois State Employees Association v. Walker, 57 Ill. 2d 512 (1974)); and
WHEREAS, the Governor’s enforcement power under Section 2 of Article XIII of the Illinois Constitution includes without limitation the ability to impose appropriate discipline on employees properly found to have engaged in misconduct; and
WHEREAS, the State Officials and Employees Ethics Act (5 ILCS 430) (the “Ethics Act”) established the Office of Executive Inspector General for the Agencies of the Illinois Governor (“OEIG”) to investigate misconduct in agencies, boards, and commissions under the jurisdiction of the Governor; and
WHEREAS, the Department of State Police Law (20 ILCS 2605/2605-50) established the Illinois State Police, Division of Internal Investigation (“ISP DII”) to initiate internal State Police investigations and to investigate allegations of criminal misconduct in agencies, boards, and commissions under the jurisdiction of Governor; and
WHEREAS, Administrative Order 6 (2003) purported to clarify the duties and responsibilities of the OEIG and the ISP DII, and to set forth procedures for investigating and reporting allegations of misconduct by State officeholders, appointees, employees, and vendors, as well as incidents at State facilities; and
WHEREAS, upon reviewing the policies and procedures set forth in Administrative Order 6 (2003), the Office of the Governor and the OEIG concluded that those policies and procedures must be updated and strengthened to ensure that the OEIG, ISP DII, and agency inspectors general have the tools needed to investigate unethical conduct and corruption and enforce ethical standards in the executive branch;
THEREFORE, I, Bruce Rauner, Governor of Illinois, by virtue of the executive authority vested in me by Section 2 of Article XIII and Section 8 of Article V of the Constitution of the State of Illinois, do hereby order as follows:
“Agency Head” means, with respect to a State Agency, the head of that State Agency, whether titled Director, Secretary, or otherwise.
“Agency Inspector General” means each inspector general of a State Agency, other than the OEIG, including without limitation each of the inspectors general of the Department of Child and Family Services, the Department of Healthcare and Family Services, the Department of Human Services, the Illinois State Toll Highway Authority, and any other statutorily-created inspector general of a State Agency.
“CMS” means the Department of Central Management Services.
“Ethics Officer” means, with respect to a State Agency, the ethics officer designated for that State Agency pursuant to Section 20-23 of the Ethics Act.
“Executive Inspector General” means the Executive Inspector General appointed by the Governor pursuant to Section 20-10 of the Ethics Act.
“Misconduct” or “misconduct” means any fraud, waste, abuse, mismanagement, misconduct, nonfeasance, misfeasance, malfeasance, or violation of law, rules, regulations, or court orders, including without limitation violations of the Ethics Act and/or the Criminal Code of 2012 (720 ILCS 5).
“State Agency” means any officer, department, agency, board, commission, or authority of the Executive Branch of the State of Illinois under the jurisdiction of the Governor for the purposes of Section 20-10(c) of the Ethics Act.
“State Employee” means any officer, employee (including without limitation full-time, part-time, and contractual employees), appointee (including without limitation paid and unpaid appointees), or person holding a similar position in any State Agency.
II. REVOCATION OF ADMINISTRATIVE ORDER 6 (2003)
Administrative Order 6 (2003) is revoked and rescinded. All policies and procedures set forth in Administrative Order 6 (2003) are replaced in their entirety by the policies and procedures set forth in this Executive Order.
III. RETALIATION IS NOT TOLERATED
The State of Illinois does not tolerate retaliation against State Employees who raise genuine concerns about unethical, inappropriate, or illegal behavior. No State Employee shall retaliate against, punish, or penalize any person for complaining to, cooperating with, or assisting with an investigation or inquiry by a State Agency, the OEIG, ISP DII, or law enforcement. Any State Employee who violates this provision shall be subject to disciplinary action, up to and including discharge.
IV. ADOPTION OF A CODE OF PERSONAL CONDUCT
Pursuant to my authority under Section 2, Article XIII of the Illinois Constitution and Section 5-5(a)(i) of the Ethics Act, I direct CMS to adopt and implement a Code of Personal Conduct for all State Employees. I further authorize CMS, on my behalf, to file such Code of Personal Conduct with the Executive Ethics Commissions pursuant to Section 5-5(b) of the Ethics Act within 100 days of this Executive Order. Any State Employee who knowingly violates the Code of Personal Conduct, with the intent to defraud the State of Illinois, violates the Ethics Act and shall be subject to disciplinary action under the Ethics Act as set forth without limitation in Sections 20-15, 20-20, 20-50, 20-55, 50-5 and 50-10 of the Ethics Act and Title 2, Sections 1620.1100 and 1620.1110 of the Illinois Administrative Code.
V. STATE AGENCIES AND EMPLOYEES HAVE THE RESPONSIBILITY TO REPORT AND INVESTIGATE MISCONDUCT
Administrative Order 6 (2003) stated that State Employees must report alleged misconduct to the OEIG and must cooperate in OEIG investigations. However, that order also stated that only the OEIG had the authority to conduct internal State Agency investigations. This restriction led on many occasions to State Agencies failing to conduct their own investigatory and discipline processes when there were allegations of serious and often ongoing wrongdoing, allowing unethical behavior and other misconduct to thrive in State government without State Agencies or the Governor taking appropriate remedial action.
To ensure that allegations of misconduct that may be causing harm to taxpayers, State Employees, or recipients of State services are being addressed quickly and fairly, all State Agencies and State Employees must adhere to the following procedures:
1. Reporting of Information: In addition to all other statutory and State Agency reporting requirements, each State Employee shall report promptly to the OEIG and/or their Ethics Officer any information concerning alleged misconduct by a State Employee or vendor. The knowing failure of any State Employee to so report shall be cause for discipline, up to and including discharge. The knowing provision of false information to the OEIG and/or Ethics Officer by any State Employee shall be cause for discipline, up to and including discharge.
2. Duty to Cooperate: Each State Agency and State Employee shall cooperate with, and provide assistance to, the OEIG in the performance of any investigation. In particular, each State Agency shall make its premises, equipment, personnel, books, records, and papers readily available to the OEIG. OEIG staff may enter the premises of any State Agency at any time, without prior announcement, if necessary for the successful completion of an investigation. In the course of an investigation, OEIG staff may question any State Employee serving in, and any other person transacting business with, a State Agency, and may inspect and copy any books, records, or papers in the possession of a State Agency, including without limitation those made confidential by law, taking care to preserve the confidentiality of information that is made confidential by law and is contained in any response to questions or in any book, record, or paper. Consistent with these duties, State Agencies shall consider the OEIG to be a “law enforcement agency.” The OEIG may compel any State Employee to truthfully answer questions concerning any matter related to the performance of his or her official duties. If so compelled, no statement or other evidence derived therefrom may be used against such State Employee in any subsequent criminal prosecution other than for charges of perjury or contempt arising from such testimony. The refusal of any State Employee to answer questions if compelled to do so shall be cause for discipline, up to and including discharge.
3. Responsibilities of Ethics Officers: Each Ethics Officer shall act as his or her State Agency’s primary liaison to the OEIG. Each Ethics Officer must promptly notify the OEIG of any allegations of misconduct after receiving such information. The notification should include all information known about the allegations and identities of potential witnesses. In addition, each Ethics Officer shall ensure that his or her current contact information, as well as the contact information for any other State Employee at the State Agency whose primary responsibility involves conducting or overseeing internal investigations, is provided to the OEIG.
4. Internal Agency Investigations: After referring an allegation to the OEIG in the manner set forth above, a State Agency shall take whatever further investigative or disciplinary action it deems appropriate, unless the OEIG has specifically requested, in writing, that the State Agency refrain from taking further action. In certain circumstances, the OEIG may request that a State Agency conduct an internal investigation into allegations referred to the State Agency by the OEIG. In such cases, the Agency Head and the Ethics Officer shall immediately refer the allegations to a designated person or unit within the State Agency to investigate. The OEIG may require a written response regarding the State Agency’s internal investigation and outcome. The State Agency must respond to these requests for a response in a timely manner. If the State Agency’s internal inquiry develops information suggesting that the conduct alleged is more serious, widespread, or in any way different than originally reported, the State Agency shall contact the OEIG before continuing the investigation.
VI. OEIG AUTHORITY TO REVIEW HIRING AND EMPLOYMENT FILES
Pursuant to Section 20-20(9) of the Ethics Act, the OEIG has the authority to review hiring and employment files of each State Agency within its jurisdiction. Pursuant to this authority, the OEIG initiated a unit dedicated to the review of hiring and employment files: The Division of Hiring and Employment Monitoring. Each State Agency and every State Employee shall cooperate with, and provide assistance to, this division of the OEIG in the performance of any hiring and/or employment review. In particular, each State Agency shall make its premises, equipment, personnel, books, records, and papers readily available to the OEIG. In the course of a hiring and/or employment review, OEIG staff may, without prior announcement, request background and/or procedural information from any State Employee serving in, and any other person transacting business with, a State Agency, and may inspect and copy any books, records, or papers in the possession of a State Agency, including without limitation those made confidential by law, taking care to preserve the confidentiality of information that is made confidential by law and is contained in responses to questions or in books, records, or papers. OEIG staff may also monitor the interview and/or selection processes utilized by or within each State Agency.
VII. PROCEDURES FOR CERTAIN CRIMINAL CONDUCT AND EMERGENCY SITUATIONS
Certain incidents involving potential criminal conduct and other emergency situations must be reported immediately to the appropriate law enforcement agencies. In the event of an emergency situation requiring an immediate police response, the Illinois State Police, county, or municipal police agency that can provide the fastest response should be contacted. Examples of such emergency criminal situations include illegal use or unlawful possession of a weapon, bodily injury or immediate threat of bodily injury, narcotics-related activity, criminal sexual assault, or death. In the event of an emergency criminal situation, State Agencies and State Employees must adhere to the following procedures:
1. Report to ISP DII: If another police agency was contacted in an emergency criminal situation, the ISP DII also should be contacted promptly.
2. Preservation of Evidence: The State Agency shall ensure the preservation of the scene of the incident, the security of the evidence, the maintenance of accurate records relating to the condition of the victim, and other relevant information. Each State Agency facility shall adopt and maintain procedures that guarantee the preservation of evidence. Non-law enforcement State Employees shall be advised not to disturb the scene until law enforcement personnel arrive. Non-law enforcement State Employees shall not take or initiate any investigation or action unless directed to do so by law enforcement officers. If any law enforcement official asks non-law enforcement State Employees of a facility to take action, the non-law enforcement State Employees shall promptly document investigative activity and retain any physical evidence gathered as a result of the inquiry.
3. Reports and Records: The State Agency shall maintain all relevant documents and attachments related to the incident. Any written record shall be confined to a concise summary of the facts, and shall not contain conclusions or opinions. The State Agency shall maintain related records in compliance with the State Records Act (5 ILCS 160) and for a period of at least five years after the close of the incident investigation.
4. Special Procedures for Allegations of Physical Abuse: All suspected patient/resident/inmate abuse, criminal sexual abuse or other incidents involving physical abuse for which State Employees are allegedly responsible, or in which State Employee negligence could have been a factor, shall be reported immediately to the respective Agency Head or designated administrative personnel. Any initial action taken should be limited to assessing whether the conduct described has occurred. If an incident has, or appears to have occurred the matter should be treated as follows:
a. Patient/Resident/Inmate Abuse or Neglect: Upon receiving notification of alleged abuse to a patient, resident, or inmate in a State Agency facility by State Employees, the administrator of the relevant facility shall immediately:
i. Have a physician examine and treat the patient, resident, or inmate and document his or her physical condition.
ii. Conduct a preliminary inquiry to establish that an incident of abuse has or appears to have occurred, and preserve all evidence and the integrity of the scene of the incident.
iii. Notify the Illinois State Police or other law enforcement agency if the need for immediate response by law enforcement is necessary. If the Illinois State Police was not notified in the first instance, the ISP DII shall be notified promptly.
iv. Conduct further inquiry into the incident if requested to do so.
v. Report any incident of patient, resident, or inmate abuse involving a person under the age of 18 years old in accordance with the Abused and Neglected Child Reporting Act (325 ILCS 5) to the Department of Children and Family Services within 24 hours after learning of such incident.
b. Criminal Sexual Abuse: If an alleged incident involves the criminal sexual abuse of a patient, resident, or inmate in a State Agency facility, the relevant facility administrator shall ensure that a physician examines the victim, utilizing a rape kit, as soon as possible after the alleged criminal sexual abuse. Such examination will be conducted to check the physical well-being of the victim, confirm injuries to the victim and document/obtain any physical evidence of any crime. All evidence should be obtained and preserved and clinical documentation completed. The facility administrator or his or her designee shall promptly notify the ISP DII.
c. Death: In accordance with the Counties Code (55 ILCS 5/3-3013), any death occurring in a State Agency facility shall be reported to the coroner of the county in which the State Agency facility is located. In addition, in accordance with the Mental Health and Disabilities Code (405 ILCS 5/5-100), notice of death of a patient or resident (a change of status report) shall be given to the Clerk of the Circuit Court which committed the patient or resident, and other notifications and reports required by law, rules, or policies of the caretaker State Agency shall be made. All deaths other than by natural causes must be immediately reported to the ISP DII.
5. Special Procedures for Allegations of Attempted Bribery: Illinois law requires all State Employees to report attempted bribery. In general, bribery is an offer or solicitation of property (including without limitation money) or personal advantage with the intent to improperly influence a public employee in the performance of any act relating to his or her employment (720 ILCS 5/33 1). By law, State Employees must report all offers of bribes to the Illinois State Police (720 ILCS 5/33-2). Any employee who has reasonable grounds to believe that an attempt to bribe has been made or suggested shall (a) avoid any statement or implication indicating acceptance or non-acceptance of the bribe, and (b) immediately report the matter to supervisory personnel. A supervisor must promptly report all incidents of attempted bribery to the ISP DII. State Employees shall cooperate fully and completely in all bribery investigations and any matters relating to the investigation. The ISP DII shall immediately notify the local State’s Attorney and the OEIG, and initiate an investigation.
VIII. ENSURING COORDINATION BETWEEN AGENCY INSPECTORS GENERAL
Administrative Order 6 (2003) stated that “in agencies where the position of inspector general is governed by statute, the inspectors general shall, by this Order, report to the OEIG. These agency inspectors general shall otherwise continue to operate and function as set forth in relevant sections of the Illinois Compiled Statutes and the Illinois Administrative Code.”
Coordination among Agency Inspectors General and the OEIG ensures efficiency and effectiveness through cooperation in investigatory efforts and the sharing of resources and information. Although this reporting system has been in place for over 13 years, the efficiency and effectiveness of the Agency Inspectors General and the OEIG continue to be limited by disconnects in communication, redundant functions, and “siloed” operations.
2. Restatement and Strengthening of Administrative Order 6 (2003)
In State Agencies with an Agency Inspector General, the Agency Inspector General shall report to the OEIG. Because State Agencies with Agency Inspectors General benefit from receiving inspector general services that are specific to that State Agency, State Agencies with Agency Inspectors General shall continue to employ their respective Agency Inspector General and related staff, and shall continue to be responsible for all costs associated with the operations and activities of their respective Agency Inspector General and related staff. Except as set forth herein, Agency Inspectors General shall otherwise continue to operate and function as set forth in relevant sections of the Illinois Compiled Statutes and the Illinois Administrative Code.
To strengthen the reporting by the Agency Inspectors General to the OEIG that has been in place since 2003, and to ensure greater effectiveness of, and coordination between, the OEIG and the Agency Inspectors General, beginning on the date of this Executive Order:
a. The Executive Inspector General and the Agency Inspectors General shall meet bimonthly at a place and time set forth by the Executive Inspector General in order for the Agency Inspectors General to report to the Executive Inspector General on investigations and for the Executive Inspector General and the Agency Inspectors General to coordinate investigatory efforts.
b. The Executive Inspector General and the Agency Inspectors General shall share resources and coordinate investigations to reduce costs and operate more efficiently.
c. The Executive Inspector General shall review and approve the allocation of Agency Inspectors General staff and resources to ensure that investigations are conducted in an effective and impartial manner.
d. Agency Inspectors General shall report to and consult with the Executive Inspector General on all investigative reports that include findings of misconduct or other wrongdoing and the recommended corrective action contained in such reports before a report is finalized.
e. The Executive Inspector General shall set forth other reporting policies and procedures that she deems appropriate, and the Agency Inspectors General and their respective staffs shall follow such policies and procedures in accordance with this Executive Order.
IX. SAVINGS CLAUSE
This Executive Order does not contravene, and shall not be construed to contravene, any federal law, State statute, or collective bargaining agreement.
X. PRIOR EXECUTIVE ORDERS
This Executive Order supersedes any contrary provision of any other prior Executive Order.
XI. SEVERABILITY CLAUSE
If any part of this Executive Order is found invalid by a court of competent jurisdiction, the remaining provisions shall remain in full force and effect. The provisions of this Executive Order are severable.
Bruce Rauner, Governor
Issued by Governor: February 26, 2016
Filed with Secretary of State: February 26, 2016