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1 | AN ACT concerning government.
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2 | Be it enacted by the People of the State of Illinois, | ||||||
3 | represented in the General Assembly:
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4 | Section 5. The State Employee Indemnification Act is | ||||||
5 | amended by changing Section 2 as follows:
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6 | (5 ILCS 350/2) (from Ch. 127, par. 1302)
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7 | Sec. 2. Representation and indemnification of State | ||||||
8 | employees.
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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,
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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
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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
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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
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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
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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.
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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
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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
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4 | unreversed judgment. In such event the State shall also pay the
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5 | employee's court costs, litigation expenses and attorneys' | ||||||
6 | fees to the
extent approved by the Attorney General as | ||||||
7 | reasonable.
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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
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14 | expenses, and attorneys' fees, to the extent approved by the | ||||||
15 | Attorney
General as reasonable, as they are incurred.
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16 | (b-5) The Attorney General may file a counterclaim on | ||||||
17 | behalf of a State
employee, provided:
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18 | (1) the Attorney General determines that the State | ||||||
19 | employee is entitled to
representation in a civil action | ||||||
20 | under this Section;
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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
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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
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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.
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5 | (c) Notwithstanding any other provision of this Section,
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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
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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.
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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
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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
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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.
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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
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19 | Services specifically designed for the payment of costs, fees | ||||||
20 | and expenses
covered by this Section.
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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.
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9 | (f) Nothing contained or implied in this Section shall
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10 | operate, or be construed or applied, to deprive the State, or | ||||||
11 | any employee
thereof, of any defense heretofore available.
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12 | (g) This Section shall apply regardless of whether the
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13 | employee is sued in his or her individual or official capacity.
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14 | (h) This Section shall not apply to claims for bodily | ||||||
15 | injury or
damage to property arising from motor vehicle | ||||||
16 | accidents.
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17 | (i) This Section shall apply to all proceedings filed on or
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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.
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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.
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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
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6 | corporation established pursuant to Section
16-111.1 of the | ||||||
7 | Public Utilities Act.
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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.)
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14 | Section 10. The Local Governmental and Governmental | ||||||
15 | Employees Tort
Immunity Act is amended by changing Section | ||||||
16 | 2-302 as follows:
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17 | (745 ILCS 10/2-302) (from Ch. 85, par. 2-302)
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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:
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23 | (a) appear and defend against the claim or action;
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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;
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3 | (c) pay, or indemnify the employee or former employee | ||||||
4 | for a judgment
based on such claim or action; or
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5 | (d) pay, or indemnify the employee or former employee | ||||||
6 | for, a compromise
or settlement of such a claim or action.
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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.
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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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