SB1102ham001 99TH GENERAL ASSEMBLY

Rep. John D. Anthony

Filed: 5/19/2015

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 1102

2    AMENDMENT NO. ______. Amend Senate Bill 1102 by replacing
3everything after the enacting clause with the following:
 
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

 

 

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

 

 

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

 

 

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1attorneys' fees to the extent approved by the Attorney General
2as reasonable, as they are incurred. In the event that the
3Attorney General declines to appear or withdraws on the grounds
4that the act or omission was not within the scope of
5employment, or was intentional, wilful or wanton misconduct,
6and a court or jury finds that the act or omission of the State
7employee was within the scope of employment and was not
8intentional, wilful or wanton misconduct, the State shall
9indemnify the State employee for any damages awarded and court
10costs and attorneys' fees assessed as part of any final and
11unreversed judgment. In such event the State shall also pay the
12employee's court costs, litigation expenses and attorneys'
13fees to the extent approved by the Attorney General as
14reasonable.
15    In the event that the defendant in the proceeding is an
16elected State official, including members of the General
17Assembly, the elected State official may retain his or her
18attorney, provided that said attorney shall be reasonably
19acceptable to the Attorney General. In such case the State
20shall pay the elected State official's court costs, litigation
21expenses, and attorneys' fees, to the extent approved by the
22Attorney General as reasonable, as they are incurred.
23    (b-5) The Attorney General may file a counterclaim on
24behalf of a State employee, provided:
25        (1) the Attorney General determines that the State
26    employee is entitled to representation in a civil action

 

 

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1    under this Section;
2        (2) the counterclaim arises out of any act or omission
3    occurring within the scope of the employee's State
4    employment that is the subject of the civil action; and
5        (3) the employee agrees in writing that if judgment is
6    entered in favor of the employee, the amount of the
7    judgment shall be applied to offset any judgment that may
8    be entered in favor of the plaintiff, and then to reimburse
9    the State treasury for court costs and litigation expenses
10    required to pursue the counterclaim. The balance of the
11    collected judgment shall be paid to the State employee.
12    (c) Notwithstanding any other provision of this Section,
13representation and indemnification of a judge under this Act
14shall also be provided in any case where the plaintiff seeks
15damages or any equitable relief as a result of any decision,
16ruling or order of a judge made in the course of his or her
17judicial or administrative duties, without regard to the theory
18of recovery employed by the plaintiff. Indemnification shall be
19for all damages awarded and all court costs, attorney fees and
20litigation expenses assessed against the judge. When a judge
21has been convicted of a crime as a result of his or her
22intentional judicial misconduct in a trial, that judge shall
23not be entitled to indemnification and representation under
24this subsection in any case maintained by a party who seeks
25damages or other equitable relief as a direct result of the
26judge's intentional judicial misconduct.

 

 

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1    (d) In any such proceeding where notice in accordance with
2this Section has been given to the Attorney General, unless the
3court or jury finds that the conduct or inaction which gave
4rise to the claim or cause of action was intentional, wilful or
5wanton misconduct and was not intended to serve or benefit
6interests of the State, the State shall indemnify the State
7employee for any damages awarded and court costs and attorneys'
8fees assessed as part of any final and unreversed judgment, or
9shall pay such judgment. Unless the Attorney General determines
10that the conduct or inaction which gave rise to the claim or
11cause of action was intentional, wilful or wanton misconduct
12and was not intended to serve or benefit interests of the
13State, the case may be settled, in the Attorney General's
14discretion and with the employee's consent, and the State shall
15indemnify the employee for any damages, court costs and
16attorneys' fees agreed to as part of the settlement, or shall
17pay such settlement. Where the employee is represented by
18private counsel, any settlement must be so approved by the
19Attorney General and the court having jurisdiction, which shall
20obligate the State to indemnify the employee.
21    (e) (i) Court costs and litigation expenses and other costs
22of providing a defense or counterclaim, including attorneys'
23fees obligated under this Section, shall be paid from the State
24Treasury on the warrant of the Comptroller out of
25appropriations made to the Department of Central Management
26Services specifically designed for the payment of costs, fees

 

 

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

 

 

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1Attorney General as provided in this Section within 30 days of
2the Act's effective date.
3    (j) The amendatory changes made to this Section by this
4amendatory Act of 1986 shall apply to all proceedings filed on
5or after the effective date of this amendatory Act of 1986 and
6to any proceeding pending on its effective date, if the State
7employee gives notice to the Attorney General as provided in
8this Section within 30 days of the effective date of this
9amendatory Act of 1986.
10    (k) This Act applies to all State officials who are serving
11as trustees, or their appointing authorities, of a clean energy
12community trust or as members of a not-for-profit foundation or
13corporation established pursuant to Section 16-111.1 of the
14Public Utilities Act.
15    (l) The State shall not provide representation for, nor
16shall it indemnify, any State employee in (i) any criminal
17proceeding in which the employee is a defendant or (ii) any
18criminal investigation in which the employee is the target.
19Nothing in this Act shall be construed to prohibit the State
20from providing representation to a State employee who is a
21witness in a criminal matter arising out of that employee's
22State employment.
23(Source: P.A. 90-655, eff. 7-30-98; 91-781, eff. 6-9-00.)
 
24    Section 10. The Local Governmental and Governmental
25Employees Tort Immunity Act is amended by changing Section

 

 

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12-302 as follows:
 
2    (745 ILCS 10/2-302)  (from Ch. 85, par. 2-302)
3    Sec. 2-302. If any claim or action is instituted against an
4employee of a local public entity based on an injury allegedly
5arising out of an act or omission occurring within the scope of
6his employment as such employee, the entity may elect to do any
7one or more of the following:
8        (a) appear and defend against the claim or action;
9        (b) indemnify the employee or former employee for his
10    court costs or reasonable attorney's fees, or both,
11    incurred in the defense of such claim or action;
12        (c) pay, or indemnify the employee or former employee
13    for a judgment based on such claim or action; or
14        (d) pay, or indemnify the employee or former employee
15    for, a compromise or settlement of such a claim or action.
16    It is hereby declared to be the public policy of this
17State, however, that no local public entity may elect to
18indemnify an employee for any portion of a judgment
19representing an award of punitive or exemplary damages.
20    No local public entity shall provide representation for,
21nor shall it indemnify, any employee of that local public
22entity in (i) any criminal proceeding in which the employee is
23a defendant or (ii) any criminal investigation in which the
24employee is the target. Nothing in this Act shall be construed
25to prohibit a local public entity from providing representation

 

 

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1to an employee who is a witness in a criminal matter arising
2out of that employee's employment with the local government
3entity.
4(Source: P.A. 92-810, eff. 8-21-02.)".
 
5    Section 99. Effective date. This Act takes effect upon
6becoming law.".