State of Illinois
92nd General Assembly
Legislation

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92_SB0850eng

 
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 1        AN ACT in relation to State employees.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section  5.  The State Employee  Indemnification  Act  is
 5    amended by changing Sections 1 and 2 as follows:

 6        (5 ILCS 350/1) (from Ch. 127, par. 1301)
 7        Sec. 1.  Definitions.  For the purpose of this Act:
 8        (a)  The  term  "State"  means the State of Illinois, the
 9    General Assembly, the court, or any State office, department,
10    division,  bureau,  board,  commission,  or  committee,   the
11    governing   boards  of  the  public  institutions  of  higher
12    education created by the State, the Illinois National  Guard,
13    the  Comprehensive Health Insurance Board, any poison control
14    center designated under the Poison Control  System  Act  that
15    receives    State   funding,   or   any   other   agency   or
16    instrumentality of the State.  It does  not  mean  any  local
17    public entity as that term is defined in Section 1-206 of the
18    Local  Governmental  and Governmental Employees Tort Immunity
19    Act or a pension fund.
20        (b)  The term "employee"  means  any  present  or  former
21    elected  or  appointed  officer,  trustee  or employee of the
22    State, or of a pension fund, any present or former member  of
23    the Illinois National Guard while on active duty, individuals
24    or   organizations   who  contract  with  the  Department  of
25    Corrections, the Comprehensive Health Insurance Board, or the
26    Department  of  Veterans'  Affairs   to   provide   services,
27    individuals or organizations who contract with the Department
28    of  Human  Services (as successor to the Department of Mental
29    Health and Developmental Disabilities)  to  provide  services
30    including but not limited to treatment and other services for
31    sexually  violent  persons,  individuals or organizations who
 
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 1    contract with the Department of Military  Affairs  for  youth
 2    programs,   individuals  or  organizations  who  contract  to
 3    perform carnival and amusement ride  safety  inspections  for
 4    the  Department  of  Labor,  individual representatives of or
 5    designated organizations authorized to represent  the  Office
 6    of  State  Long-Term  Ombudsman  for the Department on Aging,
 7    individual representatives of or organizations designated  by
 8    the Department on Aging in the performance of their duties as
 9    elder  abuse  provider  agencies  or  regional administrative
10    agencies under the Elder Abuse and Neglect  Act,  individuals
11    or organizations who perform volunteer services for the State
12    where  such  volunteer  relationship  is  reduced to writing,
13    individuals who serve on any public entity  (whether  created
14    by  law  or administrative action) described in paragraph (a)
15    of this Section, individuals or not for profit  organizations
16    who,  either as volunteers, where such volunteer relationship
17    is reduced to  writing,  or  pursuant  to  contract,  furnish
18    professional   advice   or  consultation  to  any  agency  or
19    instrumentality of the State, individuals who serve as foster
20    parents for the Department of Children  and  Family  Services
21    when  caring for a Department ward, and individuals who serve
22    as arbitrators pursuant to Part 10A of Article II of the Code
23    of Civil  Procedure  and  the  rules  of  the  Supreme  Court
24    implementing  Part 10A, each as now or hereafter amended, but
25    does not mean an independent contractor except as provided in
26    this Section. The term includes an individual appointed as an
27    inspector by the Director of  State  Police  when  performing
28    duties  within  the scope of the activities of a Metropolitan
29    Enforcement  Group  or   a   law   enforcement   organization
30    established  under the Intergovernmental Cooperation Act. The
31    term includes any designated persons  providing  services  in
32    connection  with  a  contract at a Department of Corrections'
33    facility when the Director of the Department  of  Corrections
34    determines  the designation to be in the best interest of the
 
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 1    State. An individual  who  renders  professional  advice  and
 2    consultation  to  the  State  through  an  organization which
 3    qualifies as an "employee" under the Act is also an employee.
 4    The term includes the estate or personal representative of an
 5    employee.
 6        (c)  The term "pension fund" means a retirement system or
 7    pension fund created under the Illinois Pension Code.
 8    (Source: P.A. 90-793, eff. 8-14-98; 91-726, eff. 6-2-00.)

 9        (5 ILCS 350/2) (from Ch. 127, par. 1302)
10        Sec. 2.   Representation  and  indemnification  of  State
11    employees.
12        (a)  In  the event that any civil proceeding is commenced
13    against any State employee arising out of any act or omission
14    occurring  within  the  scope   of   the   employee's   State
15    employment,  the  Attorney  General  shall,  upon  timely and
16    appropriate notice to him by such employee, appear on  behalf
17    of  such  employee  and  defend the action; provided that the
18    Attorney General may not represent  and  the  State  may  not
19    indemnify  (i)  an organization that contracts with the State
20    or (ii) persons who render services under such a contract, in
21    any civil proceeding brought by one against  the  other.   In
22    the  event that any civil proceeding is commenced against any
23    physician who is an employee of the Department of Corrections
24    or the Department of Human Services (in a  position  relating
25    to   the   Department's   mental   health  and  developmental
26    disabilities functions) alleging death or  bodily  injury  or
27    other  injury to the person of the complainant resulting from
28    and arising out of any act or omission occurring on or  after
29    December  3,  1977  within  the scope of the employee's State
30    employment, or against any physician who is  an  employee  of
31    the  Department of Veterans' Affairs alleging death or bodily
32    injury or other injury  to  the  person  of  the  complainant
33    resulting  from  and  arising  out  of  any  act  or omission
 
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 1    occurring on or after the effective date of  this  amendatory
 2    Act  of  1988  within  the  scope  of  the  employee's  State
 3    employment,  or  in  the  event  that any civil proceeding is
 4    commenced against any attorney who  is  an  employee  of  the
 5    State  Appellate  Defender  alleging legal malpractice or for
 6    other damages resulting from and arising out of any legal act
 7    or omission occurring on or after December  3,  1977,  within
 8    the scope of the employee's State employment, or in the event
 9    that any civil proceeding is commenced against any individual
10    or organization who contracts with the Department of Labor to
11    provide  services  as  a  carnival  and amusement ride safety
12    inspector alleging malpractice, death  or  bodily  injury  or
13    other injury to the person arising out of any act or omission
14    occurring  on  or after May 1, 1985, within the scope of that
15    employee's State employment, the Attorney General shall, upon
16    timely and appropriate notice to him by such employee, appear
17    on behalf of such employee and defend the action.   Any  such
18    notice  shall  be  in writing, shall be mailed within 15 days
19    after the date of receipt  by  the  employee  of  service  of
20    process,   and   shall  authorize  the  Attorney  General  to
21    represent and defend the employee  in  the  proceeding.   The
22    giving   of   this  notice  to  the  Attorney  General  shall
23    constitute an agreement by the State  employee  to  cooperate
24    with  the Attorney General in his defense of the action and a
25    consent that the Attorney General shall conduct  the  defense
26    as  he  deems  advisable  and  in  the  best interests of the
27    employee, including  settlement  in  the  Attorney  General's
28    discretion.   In any such proceeding, the State shall pay the
29    court costs and litigation expenses of defending such action,
30    to the extent approved by the Attorney General as reasonable,
31    as they are incurred.
32        (b)  In the event that the  Attorney  General  determines
33    that  so  appearing  and  defending  an  employee  either (1)
34    involves an actual or potential conflict of interest, or  (2)
 
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 1    that the act or omission which gave rise to the claim was not
 2    within  the  scope  of the employee's State employment or was
 3    intentional,  wilful  or  wanton  misconduct,  the   Attorney
 4    General shall decline in writing to appear or defend or shall
 5    promptly  take appropriate action to withdraw as attorney for
 6    such employee.  Upon receipt of such declination or upon such
 7    withdrawal by the Attorney General on the basis of an  actual
 8    or  potential  conflict  of  interest, the State employee may
 9    employ his own attorney to appear and defend, in which  event
10    the  State  shall  pay the employee's court costs, litigation
11    expenses and attorneys' fees to the extent  approved  by  the
12    Attorney General as reasonable, as they are incurred.  In the
13    event  that  the  Attorney  General  declines  to  appear  or
14    withdraws  on  the  grounds  that the act or omission was not
15    within the scope of employment, or was intentional, wilful or
16    wanton misconduct, and a court or jury finds that the act  or
17    omission  of  the  State  employee  was  within  the scope of
18    employment  and  was  not  intentional,  wilful   or   wanton
19    misconduct,  the State shall indemnify the State employee for
20    any damages awarded  and  court  costs  and  attorneys'  fees
21    assessed  as  part  of any final and unreversed judgment.  In
22    such event the State shall  also  pay  the  employee's  court
23    costs,  litigation expenses and attorneys' fees to the extent
24    approved by the Attorney General as reasonable.
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        (b-5)  The Attorney General may file  a  counterclaim  on
 
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 1    behalf of a State employee, provided:
 2             (1)  the  Attorney General determines that the State
 3        employee is entitled to representation in a civil  action
 4        under this Section;
 5             (2)  the  counterclaim  arises  out  of  any  act or
 6        omission occurring within the  scope  of  the  employee's
 7        State employment that is the subject of the civil action;
 8        and
 9             (3)  the employee agrees in writing that if judgment
10        is  entered  in  favor of the employee, the amount of the
11        judgment shall be applied to offset any judgment that may
12        be entered  in  favor  of  the  plaintiff,  and  then  to
13        reimburse   the   State  treasury  for  court  costs  and
14        litigation expenses required to pursue the  counterclaim.
15        The  balance  of  the collected judgment shall be paid to
16        the State employee.
17        (c)  Notwithstanding any other provision of this Section,
18    representation and indemnification of a judge under this  Act
19    shall  also be provided in any case where the plaintiff seeks
20    damages or any equitable relief as a result of any  decision,
21    ruling  or  order of a judge made in the course of his or her
22    judicial or administrative  duties,  without  regard  to  the
23    theory    of    recovery    employed    by   the   plaintiff.
24    Indemnification shall be for  all  damages  awarded  and  all
25    court  costs,  attorney fees and litigation expenses assessed
26    against the judge. When a judge has been convicted of a crime
27    as a result of his or her intentional judicial misconduct  in
28    a  trial, that judge shall not be entitled to indemnification
29    and  representation  under  this  subsection  in   any   case
30    maintained  by  a  party who seeks damages or other equitable
31    relief as a direct result of the judge's intentional judicial
32    misconduct.
33        (d)  In any such proceeding where  notice  in  accordance
34    with  this  Section  has  been given to the Attorney General,
 
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 1    unless the court or jury finds that the conduct  or  inaction
 2    which  gave  rise  to  the  claim  or  cause  of  action  was
 3    intentional, wilful or wanton misconduct and was not intended
 4    to  serve  or benefit interests of the State, the State shall
 5    indemnify the State employee  for  any  damages  awarded  and
 6    court costs and attorneys' fees assessed as part of any final
 7    and  unreversed judgment, or shall pay such judgment.  Unless
 8    the Attorney General determines that the conduct or  inaction
 9    which  gave  rise  to  the  claim  or  cause  of  action  was
10    intentional, wilful or wanton misconduct and was not intended
11    to  serve  or benefit interests of the State, the case may be
12    settled, in the Attorney General's discretion  and  with  the
13    employee's   consent,  and  the  State  shall  indemnify  the
14    employee for any damages, court  costs  and  attorneys'  fees
15    agreed  to  as  part  of  the  settlement,  or shall pay such
16    settlement.  Where the employee  is  represented  by  private
17    counsel,  any  settlement must be so approved by the Attorney
18    General  and  the  court  having  jurisdiction,  which  shall
19    obligate the State to indemnify the employee.
20        (e) (i)  Court costs and litigation  expenses  and  other
21    costs  of  providing  a  defense  or  counterclaim, including
22    attorneys' fees obligated under this Section, shall  be  paid
23    from the State Treasury on the warrant of the Comptroller out
24    of   appropriations   made   to  the  Department  of  Central
25    Management Services specifically designed for the payment  of
26    costs, fees and expenses covered by this Section.
27        (ii)  Upon   entry   of  a  final  judgment  against  the
28    employee, or upon the settlement of the claim,  the  employee
29    shall  cause  to  be  served  a  copy  of  such  judgment  or
30    settlement,  personally  or  by  certified or registered mail
31    within thirty days of the date of entry or  settlement,  upon
32    the chief administrative officer of the department, office or
33    agency in which he is employed.  If not inconsistent with the
34    provisions of this Section, such judgment or settlement shall
 
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 1    be certified for payment by such chief administrative officer
 2    and  by  the  Attorney  General.   The judgment or settlement
 3    shall be paid from the State Treasury on the warrant  of  the
 4    Comptroller  out  of appropriations made to the Department of
 5    Central Management Services  specifically  designed  for  the
 6    payment of claims covered by this Section.
 7        (f)  Nothing  contained  or implied in this Section shall
 8    operate, or be construed or applied, to deprive the State, or
 9    any employee thereof, of any defense heretofore available.
10        (g)  This Section shall apply regardless of  whether  the
11    employee  is  sued  in  his  or  her  individual  or official
12    capacity.
13        (h)  This Section shall not apply to  claims  for  bodily
14    injury  or  damage  to  property  arising  from motor vehicle
15    accidents.
16        (i)  This Section shall apply to all proceedings filed on
17    or after its effective date, and to any proceeding pending on
18    its effective date, if the State employee gives notice to the
19    Attorney General as provided in this Section within  30  days
20    of the Act's effective date.
21        (j)  The  amendatory changes made to this Section by this
22    amendatory Act of 1986 shall apply to all  proceedings  filed
23    on or after the effective date of this amendatory Act of 1986
24    and  to  any proceeding pending on its effective date, if the
25    State employee  gives  notice  to  the  Attorney  General  as
26    provided in this Section within 30 days of the effective date
27    of this amendatory Act of 1986.
28        (k)  This  Act  applies  to  all  State officials who are
29    serving as trustees, or their appointing  authorities,  of  a
30    clean   energy   community   trust   or   as   members  of  a
31    not-for-profit foundation or corporation established pursuant
32    to Section 16-111.1 of the Public Utilities Act.
33    (Source: P.A. 90-655, eff. 7-30-98; 91-781, eff. 6-9-00.)
 
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 1        Section 99.  Effective date.  This Act takes effect  upon
 2    becoming law.

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