Revolving Door Prohibition Overview in Illinois
This content provides an overview of the revolving door prohibition policies in Illinois that restrict state employees from accepting certain types of employment after termination. It covers regulations for different categories of employees, notification procedures, and determinations by the Office of Executive Inspector General. The aim is to maintain ethical standards and prevent conflicts of interest in state governance.
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Presentation Transcript
Office of Executive Inspector General for the Agencies of the Illinois Governor Neil P. Olson, General Counsel Illinois Pollution Control Board October 4, 2018
Overview Revolving Door Prohibition Gift Ban / De Minimis Meals and Refreshment Ex Parte Communications Ethics Act Amendments Affecting the OEIG
Revolving Door Prohibition State employees who participate in contract decisions the year prior to termination of state employment (5 ILCS 430/5-45(a)) State employees who participate in regulatory or licensing decisions the year prior to termination of state employment (5 ILCS 430/5-45(b)) Barred from employment or accepting compensation from vendor/grantee or regulated entity for one year after termination of state employment
Revolving Door Prohibition C-List Employees (5 ILCS 430/5-45(c)) Employees who, by the nature of their duties, may have the authority to participate personally and substantially in the award of State contracts or in regulatory or licensing decisions Required to seek determination from OEIG prior to accepting non-State employment
Revolving Door Prohibition H-List Employees (5 ILCS 430/5-45(h)) Certain enumerated high-level employees, members, and officers Barred for one year from accepting employment/compensation from vendor/grantee or regulated entity regardless of personal and substantial involvement OEIG does not review prospective employment
Revolving Door Determinations C-List employees must notify the OEIG upon receiving an offer of non-state employment prior to accepting the offer; form RD-101 C-List employees must also notify their agency s ethics officer Ethics officer must submit an RD-102 form to the OEIG within 5 days of receiving the employee s notification The OEIG must make a determination as to whether the employee may accept the non-state employment within 10 calendar days of having received both the RD-101 form and the RD-102 form
OEIG Procedures for Making Revolving Door Determinations Revolving Door Forms, RD-101; RD-102; and RD-103 OEIG inquiry Revolving door forms Interviews Other research Basis for determination Personal and substantial participation in a contract award or in a regulatory or licensing decision Effect of the prospective employment on a contract, regulatory or licensing decision based on totality of participation
OEIG Interpretation of Revolving Door Criteria Personal and substantial participation requires, at minimum, an ability to influence the outcome of a contract, regulatory, or licensing decision (E.g., service on an evaluation panel [In re: Burton, 15-EEC-005]; service as a site inspector [In re: McBride, 13-EEC-012]) Substantial participation does not require decision- making authority or actual decision-making, or that employee be the final decision-maker. (In re: Doyle, 15- EEC-007) Effect-test The OEIG is required (under 5 ILCS 430/5- 45(f)) to assess the effect of the prospective employment on the contract, regulatory or licensing decision at issue
OEIG Interpretation (contd) The effect-test does not require the OEIG to find that there was a quid pro quo or that the prospective employment had an actual effect on the relevant decision before the OEIG can determine that the employee is restricted from accepting the offer of employment. (In re: Esuerte, 13-EEC-019) However, under the effect-test (Section 5-45(f)), the OEIG may consider evidence that the prospective employment did not improperly affect the relevant decision, e.g., evidence that the state employee made, or participated in, a decision that was adverse to the prospective employer
Recent RD Decision on Regulatory Actions In re: Schwartz, 18-EEC-010: attorney representing agency in administrative hearings, including two matters involving his prospective private employer. OEIG determined that employee was restricted from accepting employment and EEC affirmed the OEIG s determination. Note also ARDC referral regarding potential violation of Rules of Professional Conduct (Rule 1.11(d)(2)).
Potentially Complex RD Issues Meaning of personal and substantial participation Meaning of contracts Timing of a contract award Meaning of regulatory decision Ramifications of treating prospective clients as prospective employers Meaning of a contract involving State agency
Gift Ban General Rules A state employee may not intentionally solicit or accept any gift from any prohibited source. Ban extends to spouse and immediate family living with the employee. 12 statutory exceptions, including food or refreshments not exceeding $75 a day (subsection 10-15(8)) and cumulative total value of gifts of less than $100 per year (subsection 10-15(12)). Agencies may adopt or maintain policies that are more restrictive.
Gift Ban Executive Order 15-09 Issued January 13, 2015 Section III the 10-15(8) and the 10-15(12) exceptions do not apply. Provided, however, state employees may accept de minimis meals or refreshments served at a business meeting or reception attended by the State Employee in the course of his or her official duties[.]
Gift Ban Executive Order 15-09 de minimis undefined in EO and no EEC/OEIG precedent; Black s Law Dictionary: Trifling; negligible Look to nature of the food and drink items. Are they of the type commonly offered as part of a work-related function? What is the value? Look to the context. EO requires the items be served at a business meeting or reception attended by the State Employee in the course of his or her official duties[.] Is the food/drink incidental to the performance of work duties? Or something additional?
Ex Parte Communications Section 5-50 of the Ethics Act applies to certain agencies, including the Pollution Control Board Definition of ex parte communication : any written or oral communication by any person that imparts or requests material information or makes a material argument regarding potential action concerning regulatory, quasi- adjudicatory, investment, or licensing matters pending before or under consideration by the agency. Does not include statements in a public forum, statements about policy and procedure, or intra-agency statements
Ex Parte Communications What do if receive an ex partecommunication? Depends on source: interested party or non-interested party. Interested Party: promptly memorialize and made a part of the record Non-Interested Party: reported to the ethics officer who shall require that it is promptly made part of the record and file the communication with the EEC, together with supporting documentation.
Recent Ethics Act Legislation P.A. 100-0554, eff. 11/16/17: 1) requiring sexual harassment policies; 2) adding a prohibition on sexual harassment; 3) requiring sexual harassment training; and 4) establishing penalties for violating the sexual harassment prohibitions. P.A. 100-0558, eff. 6/8/18: 1) new information on OEIG website for complainants and subjects; 2) timing of AG referrals; 3) new information in monthly public reports; and 4) discretion to disclose status of investigation to subjects and complainants.
