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, | 3 | | represented in the General Assembly:
| 4 | | Section 5. The State Employee Indemnification Act is | 5 | | amended by changing Section 2 as follows:
| 6 | | (5 ILCS 350/2) (from Ch. 127, par. 1302)
| 7 | | Sec. 2. Representation and indemnification of State | 8 | | employees.
| 9 | | (a) In the event that any civil proceeding is commenced | 10 | | against any
State employee arising out of any act
or omission | 11 | | occurring within the scope of the employee's State employment,
| 12 | | the Attorney General shall, upon timely and appropriate notice | 13 | | to him by
such employee, appear on behalf of such employee and | 14 | | defend
the action. In the event that any civil proceeding
is | 15 | | commenced against any physician who is an employee of the | 16 | | Department
of Corrections or the Department of Human Services | 17 | | (in a position relating to
the Department's mental health and | 18 | | developmental disabilities functions)
alleging death or bodily | 19 | | injury or other injury to the person
of the complainant | 20 | | resulting from and arising out of any act or omission
occurring | 21 | | on or after December 3, 1977 within the scope of the employee's
| 22 | | State employment, or against any physician who is an employee | 23 | | of the
Department of Veterans' Affairs alleging death or bodily |
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| 1 | | injury or other
injury to the person of the complainant | 2 | | resulting from and arising out of
any act or omission occurring | 3 | | on or after the effective date of this
amendatory Act of 1988 | 4 | | within the scope of the employee's State
employment, or in the | 5 | | event that any civil proceeding is commenced
against any | 6 | | attorney who is an employee of the State Appellate Defender
| 7 | | alleging legal malpractice or for other damages resulting from | 8 | | and arising
out of any legal act or omission occurring on or | 9 | | after December 3, 1977,
within the scope of the employee's | 10 | | State employment,
or in the event that any civil proceeding is | 11 | | commenced against any
individual or organization who contracts | 12 | | with the Department of Labor to
provide services as a carnival | 13 | | and amusement ride safety inspector alleging
malpractice, | 14 | | death or bodily injury or other injury to the person arising
| 15 | | out of any act or omission occurring on or after May 1, 1985, | 16 | | within the
scope of that employee's State employment, the | 17 | | Attorney General shall, upon
timely and appropriate notice to | 18 | | him by such employee, appear on behalf of
such employee and | 19 | | defend the action. Any such notice shall be in
writing, shall | 20 | | be mailed within 15 days after the date of receipt by the
| 21 | | employee of service of process, and shall authorize the | 22 | | Attorney General
to represent and defend the employee in the | 23 | | proceeding. The giving of
this notice to the Attorney General | 24 | | shall constitute an agreement by the
State employee to | 25 | | cooperate with the Attorney General in his defense of
the | 26 | | action and a consent that the Attorney General shall conduct |
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| 1 | | the
defense as he deems advisable and in the best interests of | 2 | | the employee,
including settlement in the Attorney General's | 3 | | discretion. In any such
proceeding, the State shall pay the | 4 | | court costs and litigation expenses
of defending such action, | 5 | | to the extent approved by the Attorney General
as reasonable, | 6 | | as they are incurred.
| 7 | | (b) In the event that the Attorney General determines that | 8 | | so
appearing and defending an employee either (1) involves an | 9 | | actual or
potential conflict of interest, or (2) that the act | 10 | | or omission which
gave rise to the claim was not within the | 11 | | scope of the employee's State
employment or was intentional, | 12 | | wilful or wanton misconduct, the Attorney
General shall decline | 13 | | in writing to appear or defend or shall promptly
take | 14 | | appropriate action to withdraw as attorney for such employee. | 15 | | Upon
receipt of such declination or upon such withdrawal by the | 16 | | Attorney
General on the basis of an actual or potential | 17 | | conflict of interest, the
State employee may employ his own | 18 | | attorney to appear and defend, in
which event the State shall | 19 | | pay the employee's court costs, litigation
expenses and | 20 | | attorneys' fees to the extent approved by the Attorney
General | 21 | | as reasonable, as they are incurred. In the event that the
| 22 | | Attorney General declines to appear or withdraws on the grounds | 23 | | that the
act or omission was not within the scope of | 24 | | employment, or was
intentional, wilful or wanton misconduct, | 25 | | and a court or jury finds that
the act or omission of the State | 26 | | employee was within the scope of
employment and was not |
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| 1 | | intentional, wilful or wanton misconduct, the
State shall | 2 | | indemnify the State employee for any damages awarded and
court | 3 | | costs and attorneys' fees assessed as part of any final and
| 4 | | unreversed judgment. In such event the State shall also pay the
| 5 | | employee's court costs, litigation expenses and attorneys' | 6 | | fees to the
extent approved by the Attorney General as | 7 | | reasonable.
| 8 | | In the event that the defendant in the proceeding is an | 9 | | elected State
official, including members of the General | 10 | | Assembly, the elected State
official may retain his or her | 11 | | attorney, provided that said attorney
shall be reasonably | 12 | | acceptable to the Attorney General. In such case
the State | 13 | | shall pay the elected State official's court costs, litigation
| 14 | | expenses, and attorneys' fees, to the extent approved by the | 15 | | Attorney
General as reasonable, as they are incurred.
| 16 | | (b-5) The Attorney General may file a counterclaim on | 17 | | behalf 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,
| 6 | | representation and indemnification of a judge under this Act | 7 | | shall also be
provided in any case where the plaintiff seeks | 8 | | damages or any equitable
relief as a result of any decision, | 9 | | ruling or order of a judge made in the
course of his or her | 10 | | judicial or administrative duties, without regard to
the theory | 11 | | of recovery employed by the plaintiff. Indemnification shall be
| 12 | | for all damages awarded and all court costs, attorney fees and | 13 | | litigation
expenses assessed against the judge. When a judge | 14 | | has been convicted of a
crime as a result of his or her | 15 | | intentional judicial misconduct in a trial,
that judge shall | 16 | | not be entitled to indemnification and representation
under | 17 | | this subsection in any case maintained by a party who seeks | 18 | | damages
or other equitable relief as a direct result of
the | 19 | | judge's intentional judicial misconduct.
| 20 | | (d) In any such proceeding where notice in accordance with | 21 | | this Section
has been given to the Attorney
General, unless the | 22 | | court or jury finds that the
conduct or inaction which gave | 23 | | rise to the claim or cause of action was
intentional, wilful or | 24 | | wanton misconduct and was not intended to serve
or benefit | 25 | | interests of the State, the State shall indemnify the State
| 26 | | employee for any damages awarded and court costs and attorneys' |
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| 1 | | fees
assessed as part of any final and unreversed judgment, or | 2 | | shall pay such
judgment. Unless the
Attorney General determines | 3 | | that the conduct or inaction which gave rise
to the claim or | 4 | | cause of action was intentional, wilful or wanton
misconduct | 5 | | and was not intended to serve or benefit interests of the
| 6 | | State, the case may be settled, in the Attorney General's | 7 | | discretion and
with the employee's consent,
and the State shall | 8 | | indemnify the employee for any damages, court costs
and | 9 | | attorneys' fees agreed to as part of the settlement, or shall | 10 | | pay
such settlement. Where the
employee is represented by | 11 | | private counsel, any settlement must be so
approved by the | 12 | | Attorney General and the court having jurisdiction,
which shall | 13 | | obligate the State to indemnify the employee.
| 14 | | (e) (i) Court costs and litigation expenses and other costs | 15 | | of providing a
defense or counterclaim, including attorneys' | 16 | | fees obligated under this
Section, shall be paid from the State | 17 | | Treasury on the warrant of the
Comptroller out of | 18 | | appropriations made to the Department of Central Management
| 19 | | Services specifically designed for the payment of costs, fees | 20 | | and expenses
covered by this Section.
| 21 | | (ii) Upon entry of a final judgment against the employee, | 22 | | or upon the
settlement of the claim, the employee shall cause | 23 | | to be served a copy of
such judgment or settlement, personally | 24 | | or by certified or registered mail
within thirty days of the | 25 | | date of entry or settlement, upon the chief
administrative | 26 | | officer of the department, office or agency in which he is
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| 1 | | employed. If not inconsistent with the provisions of this | 2 | | Section, such
judgment or settlement shall be certified for | 3 | | payment by such chief
administrative officer and by the | 4 | | Attorney General. The judgment or
settlement shall be paid from | 5 | | the State Treasury on the warrant of the
Comptroller out of | 6 | | appropriations made to the Department of Central
Management | 7 | | Services specifically designed for the payment of claims | 8 | | covered
by this Section.
| 9 | | (f) Nothing contained or implied in this Section shall
| 10 | | operate, or be construed or applied, to deprive the State, or | 11 | | any employee
thereof, of any defense heretofore available.
| 12 | | (g) This Section shall apply regardless of whether the
| 13 | | employee is sued in his or her individual or official capacity.
| 14 | | (h) This Section shall not apply to claims for bodily | 15 | | injury or
damage to property arising from motor vehicle | 16 | | accidents.
| 17 | | (i) This Section shall apply to all proceedings filed on or
| 18 | | after its effective date, and to any proceeding pending on its | 19 | | effective
date, if the State employee gives notice to the | 20 | | Attorney General as
provided in this Section within 30 days of | 21 | | the Act's effective date.
| 22 | | (j) The amendatory changes made to this Section by this | 23 | | amendatory Act of
1986 shall apply to all proceedings filed on | 24 | | or after the effective date of
this amendatory Act of 1986 and | 25 | | to any proceeding pending on its effective
date, if the State | 26 | | employee gives notice to the Attorney General as provided
in |
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| 1 | | this Section within 30 days of the effective date of this | 2 | | amendatory Act
of 1986.
| 3 | | (k) This Act applies to all State officials who are serving | 4 | | as trustees,
or their appointing authorities, of
a clean energy | 5 | | community trust or as members of a not-for-profit foundation or
| 6 | | corporation established pursuant to Section
16-111.1 of the | 7 | | Public Utilities Act.
| 8 | | (l) The State shall not provide representation for, nor | 9 | | shall it indemnify, any State employee in any criminal | 10 | | proceeding arising out of that employee's State employment. | 11 | | Nothing in this Act shall be construed to authorize the State | 12 | | to 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 | 15 | | Employees Tort
Immunity Act is amended by changing Section | 16 | | 2-302 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 | 19 | | employee of
a local public entity based on an injury allegedly | 20 | | arising out of an act or
omission occurring within the scope of | 21 | | his employment as such employee, the
entity may elect to do any | 22 | | one 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 | 8 | | State, however,
that no local public entity may elect to | 9 | | indemnify an employee
for any portion of a judgment | 10 | | representing an award of punitive or
exemplary damages.
| 11 | | No local public entity shall provide representation for, | 12 | | nor shall it indemnify, any employee of that local public | 13 | | entity in any criminal proceeding arising out of that | 14 | | employee's employment with the local government entity. | 15 | | Nothing in this Act shall be construed to authorize local | 16 | | public entities to represent or indemnify their employees in | 17 | | criminal matters. | 18 | | (Source: P.A. 92-810, eff. 8-21-02.)
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