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| Public Act 099-0461 | ||||
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AN ACT concerning government.
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Be it enacted by the People of the State of Illinois, | ||||
represented in the General Assembly:
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Section 5. The State Employee Indemnification Act is | ||||
amended by changing Section 2 as follows:
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(5 ILCS 350/2) (from Ch. 127, par. 1302)
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Sec. 2. Representation and indemnification of State | ||||
employees.
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(a) In the event that any civil proceeding is commenced | ||||
against any
State employee arising out of any act
or omission | ||||
occurring within the scope of the employee's State employment,
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the Attorney General shall, upon timely and appropriate notice | ||||
to him by
such employee, appear on behalf of such employee and | ||||
defend
the action. In the event that any civil proceeding
is | ||||
commenced against any physician who is an employee of the | ||||
Department
of Corrections or the Department of Human Services | ||||
(in a position relating to
the Department's mental health and | ||||
developmental disabilities functions)
alleging death or bodily | ||||
injury or other injury to the person
of the complainant | ||||
resulting from and arising out of any act or omission
occurring | ||||
on or after December 3, 1977 within the scope of the employee's
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State employment, or against any physician who is an employee | ||||
of the
Department of Veterans' Affairs alleging death or bodily | ||||
injury or other
injury to the person of the complainant | ||
resulting from and arising out of
any act or omission occurring | ||
on or after the effective date of this
amendatory Act of 1988 | ||
within the scope of the employee's State
employment, or in the | ||
event that any civil proceeding is commenced
against any | ||
attorney who is an employee of the State Appellate Defender
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alleging legal malpractice or for other damages resulting from | ||
and arising
out of any legal act or omission occurring on or | ||
after December 3, 1977,
within the scope of the employee's | ||
State employment,
or in the event that any civil proceeding is | ||
commenced against any
individual or organization who contracts | ||
with the Department of Labor to
provide services as a carnival | ||
and amusement ride safety inspector alleging
malpractice, | ||
death or bodily injury or other injury to the person arising
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out of any act or omission occurring on or after May 1, 1985, | ||
within the
scope of that employee's State employment, the | ||
Attorney General shall, upon
timely and appropriate notice to | ||
him by such employee, appear on behalf of
such employee and | ||
defend the action. Any such notice shall be in
writing, shall | ||
be mailed within 15 days after the date of receipt by the
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employee of service of process, and shall authorize the | ||
Attorney General
to represent and defend the employee in the | ||
proceeding. The giving of
this notice to the Attorney General | ||
shall constitute an agreement by the
State employee to | ||
cooperate with the Attorney General in his defense of
the | ||
action and a consent that the Attorney General shall conduct | ||
the
defense as he deems advisable and in the best interests of | ||
the employee,
including settlement in the Attorney General's | ||
discretion. In any such
proceeding, the State shall pay the | ||
court costs and litigation expenses
of defending such action, | ||
to the extent approved by the Attorney General
as reasonable, | ||
as they are incurred.
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(b) In the event that the Attorney General determines that | ||
so
appearing and defending an employee either (1) involves an | ||
actual or
potential conflict of interest, or (2) that the act | ||
or omission which
gave rise to the claim was not within the | ||
scope of the employee's State
employment or was intentional, | ||
wilful or wanton misconduct, the Attorney
General shall decline | ||
in writing to appear or defend or shall promptly
take | ||
appropriate action to withdraw as attorney for such employee. | ||
Upon
receipt of such declination or upon such withdrawal by the | ||
Attorney
General on the basis of an actual or potential | ||
conflict of interest, the
State employee may employ his own | ||
attorney to appear and defend, in
which event the State shall | ||
pay the employee's court costs, litigation
expenses and | ||
attorneys' fees to the extent approved by the Attorney
General | ||
as reasonable, as they are incurred. In the event that the
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Attorney General declines to appear or withdraws on the grounds | ||
that the
act or omission was not within the scope of | ||
employment, or was
intentional, wilful or wanton misconduct, | ||
and a court or jury finds that
the act or omission of the State | ||
employee was within the scope of
employment and was not | ||
intentional, wilful or wanton misconduct, the
State shall | ||
indemnify the State employee for any damages awarded and
court | ||
costs and attorneys' fees assessed as part of any final and
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unreversed judgment. In such event the State shall also pay the
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employee's court costs, litigation expenses and attorneys' | ||
fees to the
extent approved by the Attorney General as | ||
reasonable.
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In the event that the defendant in the proceeding is an | ||
elected State
official, including members of the General | ||
Assembly, the elected State
official may retain his or her | ||
attorney, provided that said attorney
shall be reasonably | ||
acceptable to the Attorney General. In such case
the State | ||
shall pay the elected State official's court costs, litigation
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expenses, and attorneys' fees, to the extent approved by the | ||
Attorney
General as reasonable, as they are incurred.
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(b-5) The Attorney General may file a counterclaim on | ||
behalf of a State
employee, provided:
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(1) the Attorney General determines that the State | ||
employee is entitled to
representation in a civil action | ||
under this Section;
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(2) the counterclaim arises out of any act or omission | ||
occurring within
the scope of the employee's State | ||
employment that is the subject of the civil
action; and
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(3) the employee agrees in writing that if judgment is | ||
entered in favor of
the employee, the amount of the | ||
judgment shall be applied to offset any
judgment that may | ||
be entered in favor of the plaintiff, and then to reimburse
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the State treasury for court costs and litigation expenses | ||
required to pursue
the counterclaim. The balance of the | ||
collected judgment shall be paid to the
State employee.
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(c) Notwithstanding any other provision of this Section,
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representation and indemnification of a judge under this Act | ||
shall also be
provided in any case where the plaintiff seeks | ||
damages or any equitable
relief as a result of any decision, | ||
ruling or order of a judge made in the
course of his or her | ||
judicial or administrative duties, without regard to
the theory | ||
of recovery employed by the plaintiff. Indemnification shall be
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for all damages awarded and all court costs, attorney fees and | ||
litigation
expenses assessed against the judge. When a judge | ||
has been convicted of a
crime as a result of his or her | ||
intentional judicial misconduct in a trial,
that judge shall | ||
not be entitled to indemnification and representation
under | ||
this subsection in any case maintained by a party who seeks | ||
damages
or other equitable relief as a direct result of
the | ||
judge's intentional judicial misconduct.
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(d) In any such proceeding where notice in accordance with | ||
this Section
has been given to the Attorney
General, unless the | ||
court or jury finds that the
conduct or inaction which gave | ||
rise to the claim or cause of action was
intentional, wilful or | ||
wanton misconduct and was not intended to serve
or benefit | ||
interests of the State, the State shall indemnify the State
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employee for any damages awarded and court costs and attorneys' | ||
fees
assessed as part of any final and unreversed judgment, or | ||
shall pay such
judgment. Unless the
Attorney General determines | ||
that the conduct or inaction which gave rise
to the claim or | ||
cause of action was intentional, wilful or wanton
misconduct | ||
and was not intended to serve or benefit interests of the
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State, the case may be settled, in the Attorney General's | ||
discretion and
with the employee's consent,
and the State shall | ||
indemnify the employee for any damages, court costs
and | ||
attorneys' fees agreed to as part of the settlement, or shall | ||
pay
such settlement. Where the
employee is represented by | ||
private counsel, any settlement must be so
approved by the | ||
Attorney General and the court having jurisdiction,
which shall | ||
obligate the State to indemnify the employee.
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(e) (i) Court costs and litigation expenses and other costs | ||
of providing a
defense or counterclaim, including attorneys' | ||
fees obligated under this
Section, shall be paid from the State | ||
Treasury on the warrant of the
Comptroller out of | ||
appropriations made to the Department of Central Management
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Services specifically designed for the payment of costs, fees | ||
and expenses
covered by this Section.
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(ii) Upon entry of a final judgment against the employee, | ||
or upon the
settlement of the claim, the employee shall cause | ||
to be served a copy of
such judgment or settlement, personally | ||
or by certified or registered mail
within thirty days of the | ||
date of entry or settlement, upon the chief
administrative | ||
officer of the department, office or agency in which he is
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employed. If not inconsistent with the provisions of this | ||
Section, such
judgment or settlement shall be certified for | ||
payment by such chief
administrative officer and by the | ||
Attorney General. The judgment or
settlement shall be paid from | ||
the State Treasury on the warrant of the
Comptroller out of | ||
appropriations made to the Department of Central
Management | ||
Services specifically designed for the payment of claims | ||
covered
by this Section.
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(f) Nothing contained or implied in this Section shall
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operate, or be construed or applied, to deprive the State, or | ||
any employee
thereof, of any defense heretofore available.
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(g) This Section shall apply regardless of whether the
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employee is sued in his or her individual or official capacity.
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(h) This Section shall not apply to claims for bodily | ||
injury or
damage to property arising from motor vehicle | ||
accidents.
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(i) This Section shall apply to all proceedings filed on or
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after its effective date, and to any proceeding pending on its | ||
effective
date, if the State employee gives notice to the | ||
Attorney General as
provided in this Section within 30 days of | ||
the Act's effective date.
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(j) The amendatory changes made to this Section by this | ||
amendatory Act of
1986 shall apply to all proceedings filed on | ||
or after the effective date of
this amendatory Act of 1986 and | ||
to any proceeding pending on its effective
date, if the State | ||
employee gives notice to the Attorney General as provided
in | ||
this Section within 30 days of the effective date of this | ||
amendatory Act
of 1986.
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(k) This Act applies to all State officials who are serving | ||
as trustees,
or their appointing authorities, of
a clean energy | ||
community trust or as members of a not-for-profit foundation or
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corporation established pursuant to Section
16-111.1 of the | ||
Public Utilities Act.
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(l) The State shall not provide representation for, nor | ||
shall it indemnify, any State employee in (i) any criminal | ||
proceeding in which the employee is a defendant or (ii) any | ||
criminal investigation in which the employee is the target. | ||
Nothing in this Act shall be construed to prohibit the State | ||
from providing representation to a State employee who is a | ||
witness in a criminal matter arising out of that employee's | ||
State employment. | ||
(Source: P.A. 90-655, eff. 7-30-98; 91-781, eff. 6-9-00.)
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Section 10. The Local Governmental and Governmental | ||
Employees Tort
Immunity Act is amended by changing Section | ||
2-302 as follows:
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(745 ILCS 10/2-302) (from Ch. 85, par. 2-302)
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Sec. 2-302.
If any claim or action is instituted against an | ||
employee of
a local public entity based on an injury allegedly | ||
arising out of an act or
omission occurring within the scope of | ||
his employment as such employee, the
entity may elect to do any | ||
one or more of the following:
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(a) appear and defend against the claim or action;
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(b) indemnify the employee or former employee for his | ||
court costs
or reasonable attorney's fees, or both, | ||
incurred in the defense of such
claim or action;
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(c) pay, or indemnify the employee or former employee | ||
for a judgment
based on such claim or action; or
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(d) pay, or indemnify the employee or former employee | ||
for, a compromise
or settlement of such a claim or action.
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It is hereby declared to be the public policy of this | ||
State, however,
that no local public entity may elect to | ||
indemnify an employee
for any portion of a judgment | ||
representing an award of punitive or
exemplary damages.
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If an employee of a local public entity is a defendant in | ||
any criminal action arising out of or incidental to the | ||
performance of his or her duties, the local public entity shall | ||
not provide representation for the employee in that criminal | ||
action. However, the local public entity may reimburse the | ||
employee for reasonable defense costs only if the criminal | ||
action was instituted against the employee based upon an act or | ||
omission of that employee arising out of and directly related | ||
to the lawful exercise of his or her official duty or under | ||
color of his or her authority and that action is dismissed or | ||
results in a final disposition in favor of that employee. | ||
The provisions of indemnification, as set forth above, | ||
shall be justifiably refused by the local public entity if it | ||
is determined that there exists a current insurance policy or a | ||
contract, by virtue of which the employee is entitled to a | ||
defense of the action in question. | ||
Nothing in this Act shall be construed to prohibit a local | ||
public entity from providing representation to an employee who | ||
is a witness in a criminal matter arising out of that | ||
employee's employment with the local government entity. | ||
(Source: P.A. 92-810, eff. 8-21-02.)
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Section 99. Effective date. This Act takes effect on | ||
January 1, 2017. | ||