November 23, 2021
BY BROOKE LENNEMAN
Public Act 101-0652, known as the SAFE-T ACT, amended the Illinois Public Officer Prohibited Activities Act, 50 ILCS/105 et seq., to add a new Section 4.1 concerning “retaliation against a whistleblower” (“Whistleblower Statute”). The Whistleblower Statute provides new whistleblower protections for government employees and imposes new obligations on units of local government. A summary of the Whistleblower Statute and next steps for compliance with the Whistleblower Statute are provided below. The full text of the statute can be found here:
Local Government Obligations:
- Each unit of local government must identify an “Auditing Official.” The Auditing Official can be an existing employee, hired consultant, or appointed or elected official. If the local government does not designate an Auditing Official, the Auditing Official will be the local State’s Attorney.
- The primary duties of the Auditing Official are as follows:
- Receiving complaints of prohibited retaliation against whistleblowers and improper governmental action, including violations of local, State, or federal law; the gross waste of public funds; and actions that endanger the public health and safety or otherwise violate the public trust;
- Establishing written procedures for managing complaints;
- Investigating complaints of improper governmental action;
- Reporting findings of improper governmental actions or any interference with an investigation to the unit of local government’s Chief Executive Officer and any other agency, entity or person the Auditing Official deems necessary; and
- Determining the appropriate remedy if the Auditing Official determines there was prohibited retaliation against a whistleblower, including reinstatement, reimbursement of lost wages, promotion, or other restitution. If the Auditing Official determines restitution is not a sufficient remedy, the Auditing Official may make the investigation findings available to the whistleblower or their attorney for additional efforts.
- When hired, each employee must receive a summary or full text of the Whistleblower Statute and the written processes and procedures of the Auditing Official, and then at least once a year during employment.
- Units of local government and their agents, representatives and employees are prohibited from retaliating against an employee who reports improper governmental action, cooperates with an investigation of improprieties, or testifies in a proceeding or prosecution arising out of an improper governmental action. Retaliation includes an adverse change in the employee’s employment status or the terms and conditions of employment such as denial of adequate staff, refusal to assign meaningful work, demotion, reduction in pay, reassignment, or dismissal.
- To secure the protections of the Whistleblower Statute, an employee must file a written report of an improper governmental action or prohibited retaliation with the Auditing Official or, if the Auditing Official is the subject of the wrongdoing, the State’s Attorney.
- To the extent allowed by law, the unit of local government must keep the identity of the whistleblowing employee confidential.
- If retaliated against, an employee may be reinstated, promoted, reimbursed for expenses, or provided with lost wages or another form of restitution.
A person who engages in prohibited retaliatory action in violation of the Whistleblower Statute is subject to one or more of the following penalties:
- A fine of no less than $500 and no more than $5,000; and
- Suspension without pay, demotion, discharge, or civil or criminal prosecution.
Except in cases where the State’s Attorney will be the Auditing Official, each unit of local government must:
- Identify an Auditing Official;
- Establish written procedures; and
- Upon hiring, and once a year thereafter, provide all employees with the text of the Whistleblower Statute and the Auditing Official’s written policies.
Please note that how each unit of local government approaches compliance with the Whistleblower Statute will differ depending on local code provisions and policies, and whether there is an existing employee tasked with performing audits or misconduct investigations. Please reach out to your Elrod Friedman attorneys to: (i) evaluate how the Whistleblower Statute may affect and interact with existing policies and provisions of your local code; and (ii) identify your Auditing Official.