State of Illinois
90th General Assembly
Legislation

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[ Introduced ][ Enrolled ][ Senate Amendment 001 ]

90_HB1101eng

      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
HB1101 Engrossed                              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
HB1101 Engrossed            -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
HB1101 Engrossed            -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 intentional, 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
HB1101 Engrossed            -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 attorneys' 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
HB1101 Engrossed            -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
HB1101 Engrossed            -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
HB1101 Engrossed            -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
HB1101 Engrossed            -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
HB1101 Engrossed            -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 intentional, 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 attorneys' 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,
HB1101 Engrossed            -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
HB1101 Engrossed            -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
HB1101 Engrossed            -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.

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