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Government LawyersThe newsletter of the ISBA’s Standing Committee on Government Lawyers

March 2012, vol. 13, no. 3

Whatcha gonna do, whatcha gonna do when they come for you?

Bad boys, bad boys
Whatcha gonna do
whatcha gonna do?
When they come for you?*

An Executive Inspector General, created by the State Officials and Employees Ethics Act (5 ILCS 430/20-10), investigates violations of that Act, which may include prohibited political activities, gift ban restrictions, and whistle blower protected activities. See 5 ILCS 430/20-20.

There are rights and responsibilities relative to both the Executive Inspector General and those officers and employees who are interviewed or to whom requests for documents are made.

An Executive Inspector General may request information relating to an investigation. That information must be necessary to conducting the investigation. The request must be in writing and must inform the person from whom documents or physical objects are requested that if there is a belief that the release of the field of inquiry might violate existing rights or protections under state or federal law, the recipient of the request may seek a determination from the Executive Ethics Commission as to such rights or protections. See 5 ILCS 430/20-20(2); 2 Ill. Admin. Code §1620.300 (c) (5). There is no statutory time frame by which compliance with such a request must be made. There is a dubious requirement that the recipient of a request maintain confidentiality about the request, which seems completely unenforceable and likely may compromise a fair consideration of a potential violation of rights or protections under state or federal law. Pending such determination, an Executive Inspector General could take action to insure the integrity of any requested documents or physical objects. The reasonableness of such action could, of course, be challenged.

An Executive Inspector General may issue a subpoena for the production of documents or to compel the attendance of witnesses to secure testimony. See 5 ILCS 430/20-35. This is clearly an administrative subpoena which, if ignored, would require the Executive Inspector General to secure a court order of compliance. Such a subpoena could be the subject of a motion to quash on grounds it is ambiguous or overbroad (as a subpoena for documents must be relevant to a subject matter) or that compliance presents an undue burden on the recipient. The subpoena could also be the subject of a motion for protective order.

You chuck it on that one,
You chuck it on that one,
You chuck it on ya mother,
and you chuck it on ya brother
and you chuck it on ya sister
and you chuck it to me!

The State Officials and Employees Ethics Act states that it is the duty of every officer and employee under the jurisdiction of an Executive Inspector General to cooperate in an investigation pursuant to that Act. See 5 ILCS 430/20-70. What would constitute cooperation? The Act gives only two examples of what constitutes a failure to cooperate: intentional omissions and giving knowing false statements. There is no duty to give information or produce documents not specifically requested. There is no duty to comply with an unreasonable or unnecessary request. It would likely be unreasonable to interview someone on matters outside the scope of their employment duties. The duty to cooperate is not unlimited. An officer and employee has every right under the Fifth Amendment to the United States Constitution to refuse to answer an investigator’s questions when he or she believes responses could be used in a criminal prosecution. See 5 ILCS 430/20-70. The employee also has every right protected by the United States Constitution and federal and Illinois law. 2 Ill. Admin. Code §1620.300 (c) (8) (c). Public employees have the same rights as any other citizen. An employee could not be fired merely for exercising his or her Fifth Amendment right.

The Act states that a failure to cooperate with an investigation by an Executive Inspector General is grounds for disciplinary action, including dismissal. But that is not the decision of the Executive Inspector General, who has no authority to discipline an officer or employee. That would be the decision of the employer of the officer or employee. A person who intentionally obstructs or interferes with an investigation conducted under the State Officials and Employees Ethics Act by an Executive Inspector General is subject to an administrative fine of up to $5,000 that may be levied by the Executive Ethics Commission. See 5 ILCS 430/50-5 (e).

You’re too bad,
You’re too rude,
You’re too bad,
You’re too rude,

The request for information relating to an investigation by an Executive Inspector General may be done by an interview of an officer or employee. If the officer or employee is the subject of that investigation and faces discipline, that Executive Inspector General must notify the person to be interviewed whether the investigation is criminal or administrative in nature. If it is criminal in nature, the person has the right to the presence of an attorney, union representative, or coworker not involved in the investigation. The wisest course for such a person is to exercise the right to the presence of an experienced criminal defense attorney. If the investigation is administrative in nature, the person has the right to the presence of a union representative or coworker not involved in the investigation. Requesting the presence of any of these individuals suspends the interview to a new date and time. 2 Ill. Admin. Code §1620.300(c) (6). No person notified that the investigation is criminal or administrative should ever forego their right to the presence of one of these individuals. The stakes are simply too high.

Every officer or employee involved in an investigation has an absolute right to seek advice from that person’s ethics officer on the interpretation and implementation of the State Officials and Employees Ethics Act, and an absolute right to seek advice from private legal counsel. No Executive Inspector General can encroach on that right. 2 Ill. Admin. Code §1620.300 (c) (7). A person so involved should seek every opportunity to secure such advice.

Any interview conducted by an Executive Inspector General is required to be conducted in a “businesslike manner.” Presumably that would mean in a place with adequate space, a reasonable level of privacy with sufficient seating and adequate light and ventilation. The Executive Inspector General conducting the interview is cautioned to avoid personality clashes, acts of undue familiarity, the use of profanity, and is required to treat persons with respect and not to unduly embarrass, inconvenience, intimidate or degrade a person being interviewed. 2 Ill. Admin. Code §1620.300 (c) (8) (A). This would seem to require the interview be done in appropriate business attire, with a professional demeanor, in simple clear language, without extraneous comments or remarks of a personal nature. Unless physically threatened, armed investigators cannot use firearms in a manner that may intimidate a person.

An important right of persons who are the subject of an investigation and who face discipline is the right to refuse to allow the interview to be recorded. The person also has the right to have the interview recorded. Other persons interviewed can refuse to allow the interview to be recorded, as all parties to the hearing or recording of a conversation in Illinois must consent to such hearing or recording. See 720 ILCS 5/14-2 (a) (1). Violation of the offense of eavesdropping may result in civil remedies against the eavesdropper. See 720 ILCS 5/14-6 (1).

If, during the interview, a person believes the Executive Inspector General has acted in violation of 2 Ill. Admin. Code §1620.300 (c) (8) (A)-(D), by: conducting the interview in less than a businesslike manner; abusing the person by using profanity; acting with undue familiarly, not treating the person with respect, unduly embarrassing the person; using a firearm to intimidate the person; or restricting the rights protected by the Constitution of the United States and federal and State law, that person may file a written objection with the Executive Ethics commission specifying the nature of the violation. The Commission will either sustain or overrule the objections.

When they come for you, know your rights. ■

__________

*The lyrics in this article are some of those of “Bad Boys” sung by Bob Marley.

Thomas L. Ciecko is currently General Counsel for the Suburban Bus Division of the Regional Transportation Authority. He is a former Assistant Illinois Attorney General, former Chief of the Organized Crime Division of the Will County State’s Attorney’s Office, and former Special Assistant United States Attorney. The opinions expressed in this article are his alone and do not necessarily reflect the opinions of the Suburban Bus Division of the Regional Transportation Authority.


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