SB1102 EngrossedLRB099 05349 JLK 25384 b



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.)