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| [ Engrossed ] | [ Enrolled ] | [ Senate Amendment 001 ] |
90_HB1101
5 ILCS 350/2 from Ch. 127, par. 1302
Amends the State Employee Indemnification Act. Provides
that the Attorney General shall not determine an employee's
conduct was intentional, wilful, or wanton if the employee
was not disciplined or if the employee contested discipline
and prevailed by grievance, arbitration, or Civil Service
Commission proceeding. Provides that if the Attorney General
declines to represent the employee or withdraws and the
employee prevails at trial, by motion, or by settlement or a
court or jury finds that the act or omission was within the
scope of employment and was not intentional, wilful, or
wanton misconduct, the State shall indemnify the employee for
any damages awarded and court costs and attorneys' fees
assessed as part of a final and unreversed judgment.
Provides that the State shall also pay the employee's court
costs, litigation expenses, and reasonable attorneys' fees.
Deletes current provisions concerning indemnification of
State employees. Effective immediately.
LRB9003677MWcdA
LRB9003677MWcdA
1 AN ACT to amend the State Employee Indemnification Act by
2 changing Section 2.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The State Employee Indemnification Act is
6 amended by changing Section 2 as follows:
7 (5 ILCS 350/2) (from Ch. 127, par. 1302)
8 (Text of Section before amendment by P.A. 89-507)
9 Sec. 2. Representation and indemnification of State
10 employees.
11 (a) In the event that any civil proceeding is commenced
12 against any State employee arising out of any act or omission
13 occurring within the scope of the employee's State
14 employment, the Attorney General shall, upon timely and
15 appropriate notice to him by such employee, appear on behalf
16 of such employee and defend the action. In the event that
17 any civil proceeding is commenced against any physician who
18 is an employee of the Department of Corrections or the
19 Department of Mental Health and Developmental Disabilities
20 alleging death or bodily injury or other injury to the person
21 of the complainant resulting from and arising out of any act
22 or omission occurring on or after December 3, 1977 within the
23 scope of the employee's State employment, or against any
24 physician who is an employee of the Department of Veterans'
25 Affairs alleging death or bodily injury or other injury to
26 the person of the complainant resulting from and arising out
27 of any act or omission occurring on or after the effective
28 date of this amendatory Act of 1988 within the scope of the
29 employee's State employment, or in the event that any civil
30 proceeding is commenced against any attorney who is an
31 employee of the State Appellate Defender alleging legal
-2- LRB9003677MWcdA
1 malpractice or for other damages resulting from and arising
2 out of any legal act or omission occurring on or after
3 December 3, 1977, within the scope of the employee's State
4 employment, or in the event that any civil proceeding is
5 commenced against any individual or organization who
6 contracts with the Department of Labor to provide services as
7 a carnival and amusement ride safety inspector alleging
8 malpractice, death or bodily injury or other injury to the
9 person arising out of any act or omission occurring on or
10 after May 1, 1985, within the scope of that employee's State
11 employment, the Attorney General shall, upon timely and
12 appropriate notice to him by such employee, appear on behalf
13 of such employee and defend the action. Any such notice
14 shall be in writing, shall be mailed within 15 days after the
15 date of receipt by the employee of service of process, and
16 shall authorize the Attorney General to represent and defend
17 the employee in the proceeding. The giving of this notice to
18 the Attorney General shall constitute an agreement by the
19 State employee to cooperate with the Attorney General in his
20 defense of the action and a consent that the Attorney General
21 shall conduct the defense as he deems advisable and in the
22 best interests of the employee, including settlement in the
23 Attorney General's discretion. In any such proceeding, the
24 State shall pay the court costs and litigation expenses of
25 defending such action, to the extent approved by the Attorney
26 General as reasonable, as they are incurred.
27 (b) In the event that the Attorney General determines
28 that so appearing and defending an employee either (1)
29 involves an actual or potential conflict of interest, or (2)
30 that the act or omission which gave rise to the claim was not
31 within the scope of the employee's State employment or was
32 intentional, wilful or wanton misconduct, the Attorney
33 General shall decline in writing to appear or defend or shall
34 promptly take appropriate action to withdraw as attorney for
-3- LRB9003677MWcdA
1 such employee. Upon receipt of such declination or upon such
2 withdrawal by the Attorney General on the basis of an actual
3 or potential conflict of interest, the State employee may
4 employ his own attorney to appear and defend, in which event
5 the State shall pay the employee's court costs, litigation
6 expenses and attorneys' fees to the extent approved by the
7 Attorney General as reasonable, as they are incurred. In the
8 event that the Attorney General declines to appear or
9 withdraws on the grounds that the act or omission was not
10 within the scope of employment, or was intentional, wilful or
11 wanton misconduct, and a court or jury finds that the act or
12 omission of the State employee was within the scope of
13 employment and was not intentional, wilful or wanton
14 misconduct, the State shall indemnify the State employee for
15 any damages awarded and court costs and attorneys' fees
16 assessed as part of any final and unreversed judgment. In
17 such event the State shall also pay the employee's court
18 costs, litigation expenses and attorneys' fees to the extent
19 approved by the Attorney General as reasonable.
20 Notwithstanding any other provisions of this subsection,
21 the Attorney General shall not determine an employee's
22 conduct was intentional, wilful, or wanton if that employee
23 was not disciplined by the employing agency or if the
24 employee contested the discipline and prevailed by grievance,
25 arbitration, or Civil Service Commission proceeding. In the
26 event the Attorney General declines to represent the employee
27 or withdraws on the grounds that the act or omission was not
28 within the scope of employment or was intentional, wilful, or
29 wanton, and the employee prevails at trial, by motion, or by
30 settlement or a court or jury finds that the act or omission
31 of the State employee was within the scope of employment and
32 was not intention, wilful, or wanton misconduct, the State
33 shall indemnify the State employee for any damages awarded
34 and court costs and attorneys' fees assessed as part of any
-4- LRB9003677MWcdA
1 final and unreversed judgement. In that event, the State
2 shall also pay the employee's court costs, litigation
3 expenses, and reasonable attorney's fees. The provisions of
4 this Section may be enforced in the circuit court of the
5 county within which the employee is principally employed or
6 where the underlying incident arose.
7 In the event that the defendant in the proceeding is an
8 elected State official, including members of the General
9 Assembly, the elected State official may retain his or her
10 attorney, provided that said attorney shall be reasonably
11 acceptable to the Attorney General. In such case the State
12 shall pay the elected State official's court costs,
13 litigation expenses, and attorneys' fees, to the extent
14 approved by the Attorney General as reasonable, as they are
15 incurred.
16 (c) Notwithstanding any other provision of this Section,
17 representation and indemnification of a judge under this Act
18 shall also be provided in any case where the plaintiff seeks
19 damages or any equitable relief as a result of any decision,
20 ruling or order of a judge made in the course of his or her
21 judicial or administrative duties, without regard to the
22 theory of recovery employed by the plaintiff.
23 Indemnification shall be for all damages awarded and all
24 court costs, attorney fees and litigation expenses assessed
25 against the judge. When a judge has been convicted of a crime
26 as a result of his or her intentional judicial misconduct in
27 a trial, that judge shall not be entitled to indemnification
28 and representation under this subsection in any case
29 maintained by a party who seeks damages or other equitable
30 relief as a direct result of the judge's intentional judicial
31 misconduct.
32 (d) In any such proceeding where notice in accordance
33 with this Section has been given to the Attorney General,
34 unless the court or jury finds that the conduct or inaction
-5- LRB9003677MWcdA
1 which gave rise to the claim or cause of action was
2 intentional, wilful or wanton misconduct and was not intended
3 to serve or benefit interests of the State, the State shall
4 indemnify the State employee for any damages awarded and
5 court costs and attorneys' fees assessed as part of any final
6 and unreversed judgment, or shall pay such judgment. Unless
7 the Attorney General determines that the conduct or inaction
8 which gave rise to the claim or cause of action was
9 intentional, wilful or wanton misconduct and was not intended
10 to serve or benefit interests of the State, the case may be
11 settled, in the Attorney General's discretion and with the
12 employee's consent, and the State shall indemnify the
13 employee for any damages, court costs and attorneys' fees
14 agreed to as part of the settlement, or shall pay such
15 settlement. Where the employee is represented by private
16 counsel, any settlement must be so approved by the Attorney
17 General and the court having jurisdiction, which shall
18 obligate the State to indemnify the employee.
19 (e) (i) Court costs and litigation expenses and other
20 costs of providing a defense, including attorneys' fees
21 obligated under this Section, shall be paid from the State
22 Treasury on the warrant of the Comptroller out of
23 appropriations made to the Department of Central Management
24 Services specifically designed for the payment of costs, fees
25 and expenses covered by this Section.
26 (ii) Upon entry of a final judgment against the
27 employee, or upon the settlement of the claim, the employee
28 shall cause to be served a copy of such judgment or
29 settlement, personally or by certified or registered mail
30 within thirty days of the date of entry or settlement, upon
31 the chief administrative officer of the department, office or
32 agency in which he is employed. If not inconsistent with the
33 provisions of this Section, such judgment or settlement shall
34 be certified for payment by such chief administrative officer
-6- LRB9003677MWcdA
1 and by the Attorney General. The judgment or settlement
2 shall be paid from the State Treasury on the warrant of the
3 Comptroller out of appropriations made to the Department of
4 Central Management Services specifically designed for the
5 payment of claims covered by this Section.
6 (f) Nothing contained or implied in this Section shall
7 operate, or be construed or applied, to deprive the State, or
8 any employee thereof, of any defense heretofore available.
9 (g) This Section shall apply regardless of whether the
10 employee is sued in his or her individual or official
11 capacity.
12 (h) This Section shall not apply to claims for bodily
13 injury or damage to property arising from motor vehicle
14 accidents.
15 (i) This Section shall apply to all proceedings filed on
16 or after its effective date, and to any proceeding pending on
17 its effective date, if the State employee gives notice to the
18 Attorney General as provided in this Section within 30 days
19 of the Act's effective date.
20 (j) The amendatory changes made to this Section by this
21 amendatory Act of 1986 shall apply to all proceedings filed
22 on or after the effective date of this amendatory Act of 1986
23 and to any proceeding pending on its effective date, if the
24 State employee gives notice to the Attorney General as
25 provided in this Section within 30 days of the effective date
26 of this amendatory Act of 1986.
27 (Source: P.A. 85-1219.)
28 (Text of Section after amendment by P.A. 89-507)
29 Sec. 2. Representation and indemnification of State
30 employees.
31 (a) In the event that any civil proceeding is commenced
32 against any State employee arising out of any act or omission
33 occurring within the scope of the employee's State
34 employment, the Attorney General shall, upon timely and
-7- LRB9003677MWcdA
1 appropriate notice to him by such employee, appear on behalf
2 of such employee and defend the action. In the event that
3 any civil proceeding is commenced against any physician who
4 is an employee of the Department of Corrections or the
5 Department of Human Services (in a position relating to the
6 Department's mental health and developmental disabilities
7 functions) alleging death or bodily injury or other injury to
8 the person of the complainant resulting from and arising out
9 of any act or omission occurring on or after December 3, 1977
10 within the scope of the employee's State employment, or
11 against any physician who is an employee of the Department of
12 Veterans' Affairs alleging death or bodily injury or other
13 injury to the person of the complainant resulting from and
14 arising out of any act or omission occurring on or after the
15 effective date of this amendatory Act of 1988 within the
16 scope of the employee's State employment, or in the event
17 that any civil proceeding is commenced against any attorney
18 who is an employee of the State Appellate Defender alleging
19 legal malpractice or for other damages resulting from and
20 arising out of any legal act or omission occurring on or
21 after December 3, 1977, within the scope of the employee's
22 State employment, or in the event that any civil proceeding
23 is commenced against any individual or organization who
24 contracts with the Department of Labor to provide services as
25 a carnival and amusement ride safety inspector alleging
26 malpractice, death or bodily injury or other injury to the
27 person arising out of any act or omission occurring on or
28 after May 1, 1985, within the scope of that employee's State
29 employment, the Attorney General shall, upon timely and
30 appropriate notice to him by such employee, appear on behalf
31 of such employee and defend the action. Any such notice
32 shall be in writing, shall be mailed within 15 days after the
33 date of receipt by the employee of service of process, and
34 shall authorize the Attorney General to represent and defend
-8- LRB9003677MWcdA
1 the employee in the proceeding. The giving of this notice to
2 the Attorney General shall constitute an agreement by the
3 State employee to cooperate with the Attorney General in his
4 defense of the action and a consent that the Attorney General
5 shall conduct the defense as he deems advisable and in the
6 best interests of the employee, including settlement in the
7 Attorney General's discretion. In any such proceeding, the
8 State shall pay the court costs and litigation expenses of
9 defending such action, to the extent approved by the Attorney
10 General as reasonable, as they are incurred.
11 (b) In the event that the Attorney General determines
12 that so appearing and defending an employee either (1)
13 involves an actual or potential conflict of interest, or (2)
14 that the act or omission which gave rise to the claim was not
15 within the scope of the employee's State employment or was
16 intentional, wilful or wanton misconduct, the Attorney
17 General shall decline in writing to appear or defend or shall
18 promptly take appropriate action to withdraw as attorney for
19 such employee. Upon receipt of such declination or upon such
20 withdrawal by the Attorney General on the basis of an actual
21 or potential conflict of interest, the State employee may
22 employ his own attorney to appear and defend, in which event
23 the State shall pay the employee's court costs, litigation
24 expenses and attorneys' fees to the extent approved by the
25 Attorney General as reasonable, as they are incurred. In the
26 event that the Attorney General declines to appear or
27 withdraws on the grounds that the act or omission was not
28 within the scope of employment, or was intentional, wilful or
29 wanton misconduct, and a court or jury finds that the act or
30 omission of the State employee was within the scope of
31 employment and was not intentional, wilful or wanton
32 misconduct, the State shall indemnify the State employee for
33 any damages awarded and court costs and attorneys' fees
34 assessed as part of any final and unreversed judgment. In
-9- LRB9003677MWcdA
1 such event the State shall also pay the employee's court
2 costs, litigation expenses and attorneys' fees to the extent
3 approved by the Attorney General as reasonable.
4 Notwithstanding any other provisions of this subsection,
5 the Attorney General shall not determine an employee's
6 conduct was intentional, wilful, or wanton if that employee
7 was not disciplined by the employing agency or if the
8 employee contested the discipline and prevailed by grievance,
9 arbitration, or Civil Service Commission proceeding. In the
10 event the Attorney General declines to represent the employee
11 or withdraws on the grounds that the act or omission was not
12 within the scope of employment or was intentional, wilful, or
13 wanton, and the employee prevails at trial, by motion, or by
14 settlement or a court or jury finds that the act or omission
15 of the State employee was within the scope of employment and
16 was not intention, wilful, or wanton misconduct, the State
17 shall indemnify the State employee for any damages awarded
18 and court costs and attorneys' fees assessed as part of any
19 final and unreversed judgement. In that event, the State
20 shall also pay the employee's court costs, litigation
21 expenses, and reasonable attorney's fees. The provisions of
22 this Section may be enforced in the court of the county
23 within which the employee is principally employed or where
24 the underlying incident arose.
25 In the event that the defendant in the proceeding is an
26 elected State official, including members of the General
27 Assembly, the elected State official may retain his or her
28 attorney, provided that said attorney shall be reasonably
29 acceptable to the Attorney General. In such case the State
30 shall pay the elected State official's court costs,
31 litigation expenses, and attorneys' fees, to the extent
32 approved by the Attorney General as reasonable, as they are
33 incurred.
34 (c) Notwithstanding any other provision of this Section,
-10- LRB9003677MWcdA
1 representation and indemnification of a judge under this Act
2 shall also be provided in any case where the plaintiff seeks
3 damages or any equitable relief as a result of any decision,
4 ruling or order of a judge made in the course of his or her
5 judicial or administrative duties, without regard to the
6 theory of recovery employed by the plaintiff.
7 Indemnification shall be for all damages awarded and all
8 court costs, attorney fees and litigation expenses assessed
9 against the judge. When a judge has been convicted of a crime
10 as a result of his or her intentional judicial misconduct in
11 a trial, that judge shall not be entitled to indemnification
12 and representation under this subsection in any case
13 maintained by a party who seeks damages or other equitable
14 relief as a direct result of the judge's intentional judicial
15 misconduct.
16 (d) In any such proceeding where notice in accordance
17 with this Section has been given to the Attorney General,
18 unless the court or jury finds that the conduct or inaction
19 which gave rise to the claim or cause of action was
20 intentional, wilful or wanton misconduct and was not intended
21 to serve or benefit interests of the State, the State shall
22 indemnify the State employee for any damages awarded and
23 court costs and attorneys' fees assessed as part of any final
24 and unreversed judgment, or shall pay such judgment. Unless
25 the Attorney General determines that the conduct or inaction
26 which gave rise to the claim or cause of action was
27 intentional, wilful or wanton misconduct and was not intended
28 to serve or benefit interests of the State, the case may be
29 settled, in the Attorney General's discretion and with the
30 employee's consent, and the State shall indemnify the
31 employee for any damages, court costs and attorneys' fees
32 agreed to as part of the settlement, or shall pay such
33 settlement. Where the employee is represented by private
34 counsel, any settlement must be so approved by the Attorney
-11- LRB9003677MWcdA
1 General and the court having jurisdiction, which shall
2 obligate the State to indemnify the employee.
3 (e) (i) Court costs and litigation expenses and other
4 costs of providing a defense, including attorneys' fees
5 obligated under this Section, shall be paid from the State
6 Treasury on the warrant of the Comptroller out of
7 appropriations made to the Department of Central Management
8 Services specifically designed for the payment of costs, fees
9 and expenses covered by this Section.
10 (ii) Upon entry of a final judgment against the
11 employee, or upon the settlement of the claim, the employee
12 shall cause to be served a copy of such judgment or
13 settlement, personally or by certified or registered mail
14 within thirty days of the date of entry or settlement, upon
15 the chief administrative officer of the department, office or
16 agency in which he is employed. If not inconsistent with the
17 provisions of this Section, such judgment or settlement shall
18 be certified for payment by such chief administrative officer
19 and by the Attorney General. The judgment or settlement
20 shall be paid from the State Treasury on the warrant of the
21 Comptroller out of appropriations made to the Department of
22 Central Management Services specifically designed for the
23 payment of claims covered by this Section.
24 (f) Nothing contained or implied in this Section shall
25 operate, or be construed or applied, to deprive the State, or
26 any employee thereof, of any defense heretofore available.
27 (g) This Section shall apply regardless of whether the
28 employee is sued in his or her individual or official
29 capacity.
30 (h) This Section shall not apply to claims for bodily
31 injury or damage to property arising from motor vehicle
32 accidents.
33 (i) This Section shall apply to all proceedings filed on
34 or after its effective date, and to any proceeding pending on
-12- LRB9003677MWcdA
1 its effective date, if the State employee gives notice to the
2 Attorney General as provided in this Section within 30 days
3 of the Act's effective date.
4 (j) The amendatory changes made to this Section by this
5 amendatory Act of 1986 shall apply to all proceedings filed
6 on or after the effective date of this amendatory Act of 1986
7 and to any proceeding pending on its effective date, if the
8 State employee gives notice to the Attorney General as
9 provided in this Section within 30 days of the effective date
10 of this amendatory Act of 1986.
11 (Source: P.A. 89-507, eff. 7-1-97.)
12 Section 95. No acceleration or delay. Where this Act
13 makes changes in a statute that is represented in this Act by
14 text that is not yet or no longer in effect (for example, a
15 Section represented by multiple versions), the use of that
16 text does not accelerate or delay the taking effect of (i)
17 the changes made by this Act or (ii) provisions derived from
18 any other Public Act.
19 Section 99. Effective date. This Act takes effect upon
20 becoming law.