Illinois General Assembly - Full Text of SB1102
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Full Text of SB1102  99th General Assembly

SB1102eng 99TH GENERAL ASSEMBLY



 


 
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1    AN ACT concerning government.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The State Employee Indemnification Act is
5amended by changing Section 2 as follows:
 
6    (5 ILCS 350/2)  (from Ch. 127, par. 1302)
7    Sec. 2. Representation and indemnification of State
8employees.
9    (a) In the event that any civil proceeding is commenced
10against any State employee arising out of any act or omission
11occurring within the scope of the employee's State employment,
12the Attorney General shall, upon timely and appropriate notice
13to him by such employee, appear on behalf of such employee and
14defend the action. In the event that any civil proceeding is
15commenced against any physician who is an employee of the
16Department of Corrections or the Department of Human Services
17(in a position relating to the Department's mental health and
18developmental disabilities functions) alleging death or bodily
19injury or other injury to the person of the complainant
20resulting from and arising out of any act or omission occurring
21on or after December 3, 1977 within the scope of the employee's
22State employment, or against any physician who is an employee
23of the Department of Veterans' Affairs alleging death or bodily

 

 

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1injury or other injury to the person of the complainant
2resulting from and arising out of any act or omission occurring
3on or after the effective date of this amendatory Act of 1988
4within the scope of the employee's State employment, or in the
5event that any civil proceeding is commenced against any
6attorney who is an employee of the State Appellate Defender
7alleging legal malpractice or for other damages resulting from
8and arising out of any legal act or omission occurring on or
9after December 3, 1977, within the scope of the employee's
10State employment, or in the event that any civil proceeding is
11commenced against any individual or organization who contracts
12with the Department of Labor to provide services as a carnival
13and amusement ride safety inspector alleging malpractice,
14death or bodily injury or other injury to the person arising
15out of any act or omission occurring on or after May 1, 1985,
16within the scope of that employee's State employment, the
17Attorney General shall, upon timely and appropriate notice to
18him by such employee, appear on behalf of such employee and
19defend the action. Any such notice shall be in writing, shall
20be mailed within 15 days after the date of receipt by the
21employee of service of process, and shall authorize the
22Attorney General to represent and defend the employee in the
23proceeding. The giving of this notice to the Attorney General
24shall constitute an agreement by the State employee to
25cooperate with the Attorney General in his defense of the
26action and a consent that the Attorney General shall conduct

 

 

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1the defense as he deems advisable and in the best interests of
2the employee, including settlement in the Attorney General's
3discretion. In any such proceeding, the State shall pay the
4court costs and litigation expenses of defending such action,
5to the extent approved by the Attorney General as reasonable,
6as they are incurred.
7    (b) In the event that the Attorney General determines that
8so appearing and defending an employee either (1) involves an
9actual or potential conflict of interest, or (2) that the act
10or omission which gave rise to the claim was not within the
11scope of the employee's State employment or was intentional,
12wilful or wanton misconduct, the Attorney General shall decline
13in writing to appear or defend or shall promptly take
14appropriate action to withdraw as attorney for such employee.
15Upon receipt of such declination or upon such withdrawal by the
16Attorney General on the basis of an actual or potential
17conflict of interest, the State employee may employ his own
18attorney to appear and defend, in which event the State shall
19pay the employee's court costs, litigation expenses and
20attorneys' fees to the extent approved by the Attorney General
21as reasonable, as they are incurred. In the event that the
22Attorney General declines to appear or withdraws on the grounds
23that the act or omission was not within the scope of
24employment, or was intentional, wilful or wanton misconduct,
25and a court or jury finds that the act or omission of the State
26employee was within the scope of employment and was not

 

 

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1intentional, wilful or wanton misconduct, the State shall
2indemnify the State employee for any damages awarded and court
3costs and attorneys' fees assessed as part of any final and
4unreversed judgment. In such event the State shall also pay the
5employee's court costs, litigation expenses and attorneys'
6fees to the extent approved by the Attorney General as
7reasonable.
8    In the event that the defendant in the proceeding is an
9elected State official, including members of the General
10Assembly, the elected State official may retain his or her
11attorney, provided that said attorney shall be reasonably
12acceptable to the Attorney General. In such case the State
13shall pay the elected State official's court costs, litigation
14expenses, and attorneys' fees, to the extent approved by the
15Attorney General as reasonable, as they are incurred.
16    (b-5) The Attorney General may file a counterclaim on
17behalf of a State employee, provided:
18        (1) the Attorney General determines that the State
19    employee is entitled to representation in a civil action
20    under this Section;
21        (2) the counterclaim arises out of any act or omission
22    occurring within the scope of the employee's State
23    employment that is the subject of the civil action; and
24        (3) the employee agrees in writing that if judgment is
25    entered in favor of the employee, the amount of the
26    judgment shall be applied to offset any judgment that may

 

 

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1    be entered in favor of the plaintiff, and then to reimburse
2    the State treasury for court costs and litigation expenses
3    required to pursue the counterclaim. The balance of the
4    collected judgment shall be paid to the State employee.
5    (c) Notwithstanding any other provision of this Section,
6representation and indemnification of a judge under this Act
7shall also be provided in any case where the plaintiff seeks
8damages or any equitable relief as a result of any decision,
9ruling or order of a judge made in the course of his or her
10judicial or administrative duties, without regard to the theory
11of recovery employed by the plaintiff. Indemnification shall be
12for all damages awarded and all court costs, attorney fees and
13litigation expenses assessed against the judge. When a judge
14has been convicted of a crime as a result of his or her
15intentional judicial misconduct in a trial, that judge shall
16not be entitled to indemnification and representation under
17this subsection in any case maintained by a party who seeks
18damages or other equitable relief as a direct result of the
19judge's intentional judicial misconduct.
20    (d) In any such proceeding where notice in accordance with
21this Section has been given to the Attorney General, unless the
22court or jury finds that the conduct or inaction which gave
23rise to the claim or cause of action was intentional, wilful or
24wanton misconduct and was not intended to serve or benefit
25interests of the State, the State shall indemnify the State
26employee for any damages awarded and court costs and attorneys'

 

 

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1fees assessed as part of any final and unreversed judgment, or
2shall pay such judgment. Unless the Attorney General determines
3that the conduct or inaction which gave rise to the claim or
4cause of action was intentional, wilful or wanton misconduct
5and was not intended to serve or benefit interests of the
6State, the case may be settled, in the Attorney General's
7discretion and with the employee's consent, and the State shall
8indemnify the employee for any damages, court costs and
9attorneys' fees agreed to as part of the settlement, or shall
10pay such settlement. Where the employee is represented by
11private counsel, any settlement must be so approved by the
12Attorney General and the court having jurisdiction, which shall
13obligate the State to indemnify the employee.
14    (e) (i) Court costs and litigation expenses and other costs
15of providing a defense or counterclaim, including attorneys'
16fees obligated under this Section, shall be paid from the State
17Treasury on the warrant of the Comptroller out of
18appropriations made to the Department of Central Management
19Services specifically designed for the payment of costs, fees
20and expenses covered by this Section.
21    (ii) Upon entry of a final judgment against the employee,
22or upon the settlement of the claim, the employee shall cause
23to be served a copy of such judgment or settlement, personally
24or by certified or registered mail within thirty days of the
25date of entry or settlement, upon the chief administrative
26officer of the department, office or agency in which he is

 

 

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1employed. If not inconsistent with the provisions of this
2Section, such judgment or settlement shall be certified for
3payment by such chief administrative officer and by the
4Attorney General. The judgment or settlement shall be paid from
5the State Treasury on the warrant of the Comptroller out of
6appropriations made to the Department of Central Management
7Services specifically designed for the payment of claims
8covered by this Section.
9    (f) Nothing contained or implied in this Section shall
10operate, or be construed or applied, to deprive the State, or
11any employee thereof, of any defense heretofore available.
12    (g) This Section shall apply regardless of whether the
13employee is sued in his or her individual or official capacity.
14    (h) This Section shall not apply to claims for bodily
15injury or damage to property arising from motor vehicle
16accidents.
17    (i) This Section shall apply to all proceedings filed on or
18after its effective date, and to any proceeding pending on its
19effective date, if the State employee gives notice to the
20Attorney General as provided in this Section within 30 days of
21the Act's effective date.
22    (j) The amendatory changes made to this Section by this
23amendatory Act of 1986 shall apply to all proceedings filed on
24or after the effective date of this amendatory Act of 1986 and
25to any proceeding pending on its effective date, if the State
26employee gives notice to the Attorney General as provided in

 

 

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1this Section within 30 days of the effective date of this
2amendatory Act of 1986.
3    (k) This Act applies to all State officials who are serving
4as trustees, or their appointing authorities, of a clean energy
5community trust or as members of a not-for-profit foundation or
6corporation established pursuant to Section 16-111.1 of the
7Public Utilities Act.
8    (l) The State shall not provide representation for, nor
9shall it indemnify, any State employee in any criminal
10proceeding arising out of that employee's State employment.
11Nothing in this Act shall be construed to authorize the State
12to represent or indemnify State employees in criminal matters.
13(Source: P.A. 90-655, eff. 7-30-98; 91-781, eff. 6-9-00.)
 
14    Section 10. The Local Governmental and Governmental
15Employees Tort Immunity Act is amended by changing Section
162-302 as follows:
 
17    (745 ILCS 10/2-302)  (from Ch. 85, par. 2-302)
18    Sec. 2-302. If any claim or action is instituted against an
19employee of a local public entity based on an injury allegedly
20arising out of an act or omission occurring within the scope of
21his employment as such employee, the entity may elect to do any
22one or more of the following:
23        (a) appear and defend against the claim or action;
24        (b) indemnify the employee or former employee for his

 

 

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1    court costs or reasonable attorney's fees, or both,
2    incurred in the defense of such claim or action;
3        (c) pay, or indemnify the employee or former employee
4    for a judgment based on such claim or action; or
5        (d) pay, or indemnify the employee or former employee
6    for, a compromise or settlement of such a claim or action.
7    It is hereby declared to be the public policy of this
8State, however, that no local public entity may elect to
9indemnify an employee for any portion of a judgment
10representing an award of punitive or exemplary damages.
11    No local public entity shall provide representation for,
12nor shall it indemnify, any employee of that local public
13entity in any criminal proceeding arising out of that
14employee's employment with the local government entity.
15Nothing in this Act shall be construed to authorize local
16public entities to represent or indemnify their employees in
17criminal matters.
18(Source: P.A. 92-810, eff. 8-21-02.)