Public Act 099-0461
 
SB1102 EnrolledLRB099 05349 JLK 25384 b

    AN ACT concerning government.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The State Employee Indemnification Act is
amended by changing Section 2 as follows:
 
    (5 ILCS 350/2)  (from Ch. 127, par. 1302)
    Sec. 2. Representation and indemnification of State
employees.
    (a) In the event that any civil proceeding is commenced
against any State employee arising out of any act or omission
occurring within the scope of the employee's State employment,
the Attorney General shall, upon timely and appropriate notice
to him by such employee, appear on behalf of such employee and
defend the action. In the event that any civil proceeding is
commenced against any physician who is an employee of the
Department of Corrections or the Department of Human Services
(in a position relating to the Department's mental health and
developmental disabilities functions) alleging death or bodily
injury or other injury to the person of the complainant
resulting from and arising out of any act or omission occurring
on or after December 3, 1977 within the scope of the employee's
State employment, or against any physician who is an employee
of the Department of Veterans' Affairs alleging death or bodily
injury or other injury to the person of the complainant
resulting from and arising out of any act or omission occurring
on or after the effective date of this amendatory Act of 1988
within the scope of the employee's State employment, or in the
event that any civil proceeding is commenced against any
attorney who is an employee of the State Appellate Defender
alleging legal malpractice or for other damages resulting from
and arising out of any legal act or omission occurring on or
after December 3, 1977, within the scope of the employee's
State employment, or in the event that any civil proceeding is
commenced against any individual or organization who contracts
with the Department of Labor to provide services as a carnival
and amusement ride safety inspector alleging malpractice,
death or bodily injury or other injury to the person arising
out of any act or omission occurring on or after May 1, 1985,
within the scope of that employee's State employment, the
Attorney General shall, upon timely and appropriate notice to
him by such employee, appear on behalf of such employee and
defend the action. Any such notice shall be in writing, shall
be mailed within 15 days after the date of receipt by the
employee of service of process, and shall authorize the
Attorney General to represent and defend the employee in the
proceeding. The giving of this notice to the Attorney General
shall constitute an agreement by the State employee to
cooperate with the Attorney General in his defense of the
action and a consent that the Attorney General shall conduct
the defense as he deems advisable and in the best interests of
the employee, including settlement in the Attorney General's
discretion. In any such proceeding, the State shall pay the
court costs and litigation expenses of defending such action,
to the extent approved by the Attorney General as reasonable,
as they are incurred.
    (b) In the event that the Attorney General determines that
so appearing and defending an employee either (1) involves an
actual or potential conflict of interest, or (2) that the act
or omission which gave rise to the claim was not within the
scope of the employee's State employment or was intentional,
wilful or wanton misconduct, the Attorney General shall decline
in writing to appear or defend or shall promptly take
appropriate action to withdraw as attorney for such employee.
Upon receipt of such declination or upon such withdrawal by the
Attorney General on the basis of an actual or potential
conflict of interest, the State employee may employ his own
attorney to appear and defend, in which event the State shall
pay the employee's court costs, litigation expenses and
attorneys' fees to the extent approved by the Attorney General
as reasonable, as they are incurred. In the event that the
Attorney General declines to appear or withdraws on the grounds
that the act or omission was not within the scope of
employment, or was intentional, wilful or wanton misconduct,
and a court or jury finds that the act or omission of the State
employee was within the scope of employment and was not
intentional, wilful or wanton misconduct, the State shall
indemnify the State employee for any damages awarded and court
costs and attorneys' fees assessed as part of any final and
unreversed judgment. In such event the State shall also pay the
employee's court costs, litigation expenses and attorneys'
fees to the extent approved by the Attorney General as
reasonable.
    In the event that the defendant in the proceeding is an
elected State official, including members of the General
Assembly, the elected State official may retain his or her
attorney, provided that said attorney shall be reasonably
acceptable to the Attorney General. In such case the State
shall pay the elected State official's court costs, litigation
expenses, and attorneys' fees, to the extent approved by the
Attorney General as reasonable, as they are incurred.
    (b-5) The Attorney General may file a counterclaim on
behalf of a State employee, provided:
        (1) the Attorney General determines that the State
    employee is entitled to representation in a civil action
    under this Section;
        (2) the counterclaim arises out of any act or omission
    occurring within the scope of the employee's State
    employment that is the subject of the civil action; and
        (3) the employee agrees in writing that if judgment is
    entered in favor of the employee, the amount of the
    judgment shall be applied to offset any judgment that may
    be entered in favor of the plaintiff, and then to reimburse
    the State treasury for court costs and litigation expenses
    required to pursue the counterclaim. The balance of the
    collected judgment shall be paid to the State employee.
    (c) Notwithstanding any other provision of this Section,
representation and indemnification of a judge under this Act
shall also be provided in any case where the plaintiff seeks
damages or any equitable relief as a result of any decision,
ruling or order of a judge made in the course of his or her
judicial or administrative duties, without regard to the theory
of recovery employed by the plaintiff. Indemnification shall be
for all damages awarded and all court costs, attorney fees and
litigation expenses assessed against the judge. When a judge
has been convicted of a crime as a result of his or her
intentional judicial misconduct in a trial, that judge shall
not be entitled to indemnification and representation under
this subsection in any case maintained by a party who seeks
damages or other equitable relief as a direct result of the
judge's intentional judicial misconduct.
    (d) In any such proceeding where notice in accordance with
this Section has been given to the Attorney General, unless the
court or jury finds that the conduct or inaction which gave
rise to the claim or cause of action was intentional, wilful or
wanton misconduct and was not intended to serve or benefit
interests of the State, the State shall indemnify the State
employee for any damages awarded and court costs and attorneys'
fees assessed as part of any final and unreversed judgment, or
shall pay such judgment. Unless the Attorney General determines
that the conduct or inaction which gave rise to the claim or
cause of action was intentional, wilful or wanton misconduct
and was not intended to serve or benefit interests of the
State, the case may be settled, in the Attorney General's
discretion and with the employee's consent, and the State shall
indemnify the employee for any damages, court costs and
attorneys' fees agreed to as part of the settlement, or shall
pay such settlement. Where the employee is represented by
private counsel, any settlement must be so approved by the
Attorney General and the court having jurisdiction, which shall
obligate the State to indemnify the employee.
    (e) (i) Court costs and litigation expenses and other costs
of providing a defense or counterclaim, including attorneys'
fees obligated under this Section, shall be paid from the State
Treasury on the warrant of the Comptroller out of
appropriations made to the Department of Central Management
Services specifically designed for the payment of costs, fees
and expenses covered by this Section.
    (ii) Upon entry of a final judgment against the employee,
or upon the settlement of the claim, the employee shall cause
to be served a copy of such judgment or settlement, personally
or by certified or registered mail within thirty days of the
date of entry or settlement, upon the chief administrative
officer of the department, office or agency in which he is
employed. If not inconsistent with the provisions of this
Section, such judgment or settlement shall be certified for
payment by such chief administrative officer and by the
Attorney General. The judgment or settlement shall be paid from
the State Treasury on the warrant of the Comptroller out of
appropriations made to the Department of Central Management
Services specifically designed for the payment of claims
covered by this Section.
    (f) Nothing contained or implied in this Section shall
operate, or be construed or applied, to deprive the State, or
any employee thereof, of any defense heretofore available.
    (g) This Section shall apply regardless of whether the
employee is sued in his or her individual or official capacity.
    (h) This Section shall not apply to claims for bodily
injury or damage to property arising from motor vehicle
accidents.
    (i) This Section shall apply to all proceedings filed on or
after its effective date, and to any proceeding pending on its
effective date, if the State employee gives notice to the
Attorney General as provided in this Section within 30 days of
the Act's effective date.
    (j) The amendatory changes made to this Section by this
amendatory Act of 1986 shall apply to all proceedings filed on
or after the effective date of this amendatory Act of 1986 and
to any proceeding pending on its effective date, if the State
employee gives notice to the Attorney General as provided in
this Section within 30 days of the effective date of this
amendatory Act of 1986.
    (k) This Act applies to all State officials who are serving
as trustees, or their appointing authorities, of a clean energy
community trust or as members of a not-for-profit foundation or
corporation established pursuant to Section 16-111.1 of the
Public Utilities Act.
    (l) The State shall not provide representation for, nor
shall it indemnify, any State employee in (i) any criminal
proceeding in which the employee is a defendant or (ii) any
criminal investigation in which the employee is the target.
Nothing in this Act shall be construed to prohibit the State
from providing representation to a State employee who is a
witness in a criminal matter arising out of that employee's
State employment.
(Source: P.A. 90-655, eff. 7-30-98; 91-781, eff. 6-9-00.)
 
    Section 10. The Local Governmental and Governmental
Employees Tort Immunity Act is amended by changing Section
2-302 as follows:
 
    (745 ILCS 10/2-302)  (from Ch. 85, par. 2-302)
    Sec. 2-302. If any claim or action is instituted against an
employee of a local public entity based on an injury allegedly
arising out of an act or omission occurring within the scope of
his employment as such employee, the entity may elect to do any
one or more of the following:
        (a) appear and defend against the claim or action;
        (b) indemnify the employee or former employee for his
    court costs or reasonable attorney's fees, or both,
    incurred in the defense of such claim or action;
        (c) pay, or indemnify the employee or former employee
    for a judgment based on such claim or action; or
        (d) pay, or indemnify the employee or former employee
    for, a compromise or settlement of such a claim or action.
    It is hereby declared to be the public policy of this
State, however, that no local public entity may elect to
indemnify an employee for any portion of a judgment
representing an award of punitive or exemplary damages.
    If an employee of a local public entity is a defendant in
any criminal action arising out of or incidental to the
performance of his or her duties, the local public entity shall
not provide representation for the employee in that criminal
action. However, the local public entity may reimburse the
employee for reasonable defense costs only if the criminal
action was instituted against the employee based upon an act or
omission of that employee arising out of and directly related
to the lawful exercise of his or her official duty or under
color of his or her authority and that action is dismissed or
results in a final disposition in favor of that employee.
    The provisions of indemnification, as set forth above,
shall be justifiably refused by the local public entity if it
is determined that there exists a current insurance policy or a
contract, by virtue of which the employee is entitled to a
defense of the action in question.
    Nothing in this Act shall be construed to prohibit a local
public entity from providing representation to an employee who
is a witness in a criminal matter arising out of that
employee's employment with the local government entity.
(Source: P.A. 92-810, eff. 8-21-02.)
 
    Section 99. Effective date. This Act takes effect on
January 1, 2017.

Effective Date: 1/1/2017