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91_SB0385enr SB385 Enrolled LRB9102460JSmb 1 AN ACT concerning the Illinois Clean Energy Community 2 Trust, amending named Acts. 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 Sec. 2. Representation and indemnification of State 9 employees. 10 (a) In the event that any civil proceeding is commenced 11 against any State employee arising out of any act or omission 12 occurring within the scope of the employee's State 13 employment, the Attorney General shall, upon timely and 14 appropriate notice to him by such employee, appear on behalf 15 of such employee and defend the action. In the event that 16 any civil proceeding is commenced against any physician who 17 is an employee of the Department of Corrections or the 18 Department of Human Services (in a position relating to the 19 Department's mental health and developmental disabilities 20 functions) alleging death or bodily injury or other injury to 21 the person of the complainant resulting from and arising out 22 of any act or omission occurring on or after December 3, 1977 23 within the scope of the employee's State employment, or 24 against any physician who is an employee of the Department of 25 Veterans' Affairs alleging death or bodily injury or other 26 injury to the person of the complainant resulting from and 27 arising out of any act or omission occurring on or after the 28 effective date of this amendatory Act of 1988 within the 29 scope of the employee's State employment, or in the event 30 that any civil proceeding is commenced against any attorney 31 who is an employee of the State Appellate Defender alleging SB385 Enrolled -2- LRB9102460JSmb 1 legal malpractice or for other damages resulting from and 2 arising out of any legal act or omission occurring on or 3 after December 3, 1977, within the scope of the employee's 4 State employment, or in the event that any civil proceeding 5 is 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 SB385 Enrolled -3- LRB9102460JSmb 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 In the event that the defendant in the proceeding is an 21 elected State official, including members of the General 22 Assembly, the elected State official may retain his or her 23 attorney, provided that said attorney shall be reasonably 24 acceptable to the Attorney General. In such case the State 25 shall pay the elected State official's court costs, 26 litigation expenses, and attorneys' fees, to the extent 27 approved by the Attorney General as reasonable, as they are 28 incurred. 29 (b-5) The Attorney General may file a counterclaim on 30 behalf of a State employee, provided: 31 (1) the Attorney General determines that the State 32 employee is entitled to representation in a civil action 33 under this Section; 34 (2) the counterclaim arises out of any act or SB385 Enrolled -4- LRB9102460JSmb 1 omission occurring within the scope of the employee's 2 State employment that is the subject of the civil action; 3 and 4 (3) the employee agrees in writing that if judgment 5 is entered in favor of the employee, the amount of the 6 judgment shall be applied to offset any judgment that may 7 be entered in favor of the plaintiff, and then to 8 reimburse the State treasury for court costs and 9 litigation expenses required to pursue the counterclaim. 10 The balance of the collected judgment shall be paid to 11 the State employee. 12 (c) Notwithstanding any other provision of this Section, 13 representation and indemnification of a judge under this Act 14 shall also be provided in any case where the plaintiff seeks 15 damages or any equitable relief as a result of any decision, 16 ruling or order of a judge made in the course of his or her 17 judicial or administrative duties, without regard to the 18 theory of recovery employed by the plaintiff. 19 Indemnification shall be for all damages awarded and all 20 court costs, attorney fees and litigation expenses assessed 21 against the judge. When a judge has been convicted of a crime 22 as a result of his or her intentional judicial misconduct in 23 a trial, that judge shall not be entitled to indemnification 24 and representation under this subsection in any case 25 maintained by a party who seeks damages or other equitable 26 relief as a direct result of the judge's intentional judicial 27 misconduct. 28 (d) In any such proceeding where notice in accordance 29 with this Section has been given to the Attorney General, 30 unless the court or jury finds that the conduct or inaction 31 which gave rise to the claim or cause of action was 32 intentional, wilful or wanton misconduct and was not intended 33 to serve or benefit interests of the State, the State shall 34 indemnify the State employee for any damages awarded and SB385 Enrolled -5- LRB9102460JSmb 1 court costs and attorneys' fees assessed as part of any final 2 and unreversed judgment, or shall pay such judgment. Unless 3 the Attorney General determines that the conduct or inaction 4 which gave rise to the claim or cause of action was 5 intentional, wilful or wanton misconduct and was not intended 6 to serve or benefit interests of the State, the case may be 7 settled, in the Attorney General's discretion and with the 8 employee's consent, and the State shall indemnify the 9 employee for any damages, court costs and attorneys' fees 10 agreed to as part of the settlement, or shall pay such 11 settlement. Where the employee is represented by private 12 counsel, any settlement must be so approved by the Attorney 13 General and the court having jurisdiction, which shall 14 obligate the State to indemnify the employee. 15 (e) (i) Court costs and litigation expenses and other 16 costs of providing a defense or counterclaim, including 17 attorneys' fees obligated under this Section, shall be paid 18 from the State Treasury on the warrant of the Comptroller out 19 of appropriations made to the Department of Central 20 Management Services specifically designed for the payment of 21 costs, fees and expenses covered by this Section. 22 (ii) Upon entry of a final judgment against the 23 employee, or upon the settlement of the claim, the employee 24 shall cause to be served a copy of such judgment or 25 settlement, personally or by certified or registered mail 26 within thirty days of the date of entry or settlement, upon 27 the chief administrative officer of the department, office or 28 agency in which he is employed. If not inconsistent with the 29 provisions of this Section, such judgment or settlement shall 30 be certified for payment by such chief administrative officer 31 and by the Attorney General. The judgment or settlement 32 shall be paid from the State Treasury on the warrant of the 33 Comptroller out of appropriations made to the Department of 34 Central Management Services specifically designed for the SB385 Enrolled -6- LRB9102460JSmb 1 payment of claims covered by this Section. 2 (f) Nothing contained or implied in this Section shall 3 operate, or be construed or applied, to deprive the State, or 4 any employee thereof, of any defense heretofore available. 5 (g) This Section shall apply regardless of whether the 6 employee is sued in his or her individual or official 7 capacity. 8 (h) This Section shall not apply to claims for bodily 9 injury or damage to property arising from motor vehicle 10 accidents. 11 (i) This Section shall apply to all proceedings filed on 12 or after its effective date, and to any proceeding pending on 13 its effective date, if the State employee gives notice to the 14 Attorney General as provided in this Section within 30 days 15 of the Act's effective date. 16 (j) The amendatory changes made to this Section by this 17 amendatory Act of 1986 shall apply to all proceedings filed 18 on or after the effective date of this amendatory Act of 1986 19 and to any proceeding pending on its effective date, if the 20 State employee gives notice to the Attorney General as 21 provided in this Section within 30 days of the effective date 22 of this amendatory Act of 1986. 23 (k) This Act applies to all State officials who are 24 serving as trustees, or their appointing authorities, of a 25 clean energy community trust or as members of a 26 not-for-profit foundation or corporation established pursuant 27 to Section 16-111.1 of the Public Utilities Act. 28 (Source: P.A. 89-507, eff. 7-1-97; 89-688, eff. 6-1-97; 29 90-655, eff. 7-30-98.) 30 Section 10. The Public Utilities Act is amended by 31 changing Section 16-111.1 as follows: 32 (220 ILCS 5/16-111.1) SB385 Enrolled -7- LRB9102460JSmb 1 Sec. 16-111.1. Illinois Clean Energy Community Trust. 2 (a) An electric utility which has sold or transferred 3 generating facilities in a transaction to which subsection 4 (k) of Section 16-111 applies is authorized to establish an 5 Illinois clean energy community trust or foundation for the 6 purposes of providing financial support and assistance to 7 entities, public or private, within the State of Illinois 8 including, but not limited to, units of State and local 9 government, educational institutions, corporations, and 10 charitable, educational, environmental and community 11 organizations, for programs and projects that benefit the 12 public by improving energy efficiency, developing renewable 13 energy resources, supporting other energy related projects 14 that improve the State's environmental quality, and 15 supporting projects and programs intended to preserve or 16 enhance the natural habitats and wildlife areas of the State. 17 Provided, however, that the trust or foundation funds shall 18 not be used for the remediation of environmentally impaired 19 property. The trust or foundation may also assist in 20 identifying other energy and environmental grant 21 opportunities. 22 (b) Such trust or foundation shall be governed by a 23 declaration of trust or articles of incorporation and bylaws 24 which shall, at a minimum, provide that: 25 (1) There shall be 6 voting trustees of the trust 26 or foundation, one of whom shall be appointed by the 27 Governor, one of whom shall be appointed by the President 28 of the Illinois Senate, one of whom shall be appointed by 29 the Minority Leader of the Illinois Senate, one of whom 30 shall be appointed by the Speaker of the Illinois House 31 of Representatives, one of whom shall be appointed by the 32 Minority Leader of the Illinois House of Representatives, 33 and one of whom shall be appointed by the electric 34 utility establishing the trust or foundation, provided SB385 Enrolled -8- LRB9102460JSmb 1 that the voting trustee appointed by the utility shall be 2 a representative of a recognized environmental action 3 group selected by the utility. The Governor shall 4 designateselectone of the 6 voting trustees to serve 5 as, once appointed, to be the firstchairman of the trust 6 or foundation, who shall serve as chairman of the trust 7 or foundation at the pleasure of the Governorpending the8first election of officers. In addition, there shall be 4 9 non-voting trustees, one of whom shall be appointed by 10 the Director of the Department of Commerce and Community 11 Affairs, one of whom shall be appointed by the Director 12 of the Illinois Environmental Protection Agency, one of 13 whom shall be appointed by the Director of the Department 14 of Natural Resources, and one of whom shall be appointed 15 by the electric utility establishing the trust or 16 foundation, provided that the non-voting trustee 17 appointed by the utility shall bring financial expertise 18 to the trust or foundation and shall have appropriate 19 credentials therefor. 20 (2) All voting trustees and the non-voting trustee 21 with financial expertise shall be entitled to 22 compensation for their services as trustees, provided, 23 however, that no member of the General Assembly and no 24 employee of the electric utility establishing the trust 25 or foundation serving as a voting trustee shall receive 26 any compensation for his or her services as a trustee, 27 and provided further that the compensation to the 28 chairman of the trust shall not exceed $25,000 annually 29 and the compensation to any other trustee shall not 30 exceed $20,000 annually. All trustees shall be entitled 31 to reimbursement for reasonable expenses incurred on 32 behalf of the trust in the performance of their duties as 33 trustees. All such compensation and reimbursements shall 34 be paid out of the trust. SB385 Enrolled -9- LRB9102460JSmb 1 (3) Trustees shall be appointed within 30 days 2 after the creation of the trust or foundation and shall 3 serve for a term of 5 years commencing upon the date of 4 their respective appointments, until their respective 5 successors are appointed and qualified. 6 (4) A vacancy in the office of trustee shall be 7 filled by the person holding the office responsible for 8 appointing the trustee whose death or resignation creates 9 the vacancy, and a trustee appointed to fill a vacancy 10 shall serve the remainder of the term of the trustee 11 whose resignation or death created the vacancy. 12 (5) The trust or foundation shall have an 13 indefinite term, and shall terminate at such time as no 14 trust assets remain. 15 (6) The trust or foundation shall be funded in the 16 minimum amount of $250,000,000, with the allocation and 17 disbursement of funds for the various purposes for which 18 the trust or foundation is established to be determined 19 by the trustees in accordance with the declaration of 20 trust or the articles of incorporation and bylaws; 21 provided, however, that this amount may be reduced by up 22 to $25,000,000 if, at the time the trust or foundation is 23 funded, a corresponding amount is contributed by the 24 electric utility establishing the trust or foundation to 25 the Board of Trustees of Southern Illinois University for 26 the purpose of funding programs or projects related to 27 clean coal and provided further that $25,000,000 of the 28 amount contributed to the trust or foundation shall be 29 available to fund programs or projects related to clean 30 coal. 31 (7) The trust or foundation shall be authorized to 32 employ an executive director and other employees, to 33 enter into leases, contracts and other obligations on 34 behalf of the trust or foundation, and to incur expenses SB385 Enrolled -10- LRB9102460JSmb 1 that the trustees deem necessary or appropriate for the 2 fulfillment of the purposes for which the trust or 3 foundation is established, provided, however, that 4 salaries and administrative expenses incurred on behalf 5 of the trust or foundation shall not exceed $500,000 in 6 the first fiscal year after the trust or foundation is 7 established and shall not exceed $1,000,000 in each 8 subsequent fiscal year. 9 (8) The trustees may create and appoint advisory 10 boards or committees to assist them with the 11 administration of the trust or foundation, and to advise 12 and make recommendations to them regarding the 13 contribution and disbursement of the trust or foundation 14 funds. 15 (c)(1) In addition to the allocation and disbursement of 16 funds for the purposes set forth in subsection (a) of 17 this Section, the trustees of the trust or foundation 18 shall annually contribute funds in amounts set forth in 19 subparagraph (2) of this subsection to the Citizens 20 Utility Board created by the Citizens Utility Board Act; 21 provided, however, that any such funds shall be used 22 solely for the representation of the interests of utility 23 consumers before the Illinois Commerce Commission, the 24 Federal Energy Regulatory Commission, and the Federal 25 Communications Commission and for the provision of 26 consumer education on utility service and prices and on 27 benefits and methods of energy conservation. Provided, 28 however, that no part of such funds shall be used to 29 support (i) any lobbying activity, (ii) activities 30 related to fundraising, (iii) advertising or other 31 marketing efforts regarding a particular utility, or (iv) 32 solicitation of support for, or advocacy of, a particular 33 position regarding any specific utility or a utility's 34 docketed proceeding. SB385 Enrolled -11- LRB9102460JSmb 1 (2) In the calendar year in which the trust or 2 foundation is first funded, the trustees shall contribute 3 $1,000,000 to the Citizens Utility Board within 60 days 4 after such trust or foundation is established; provided, 5 however, that such contribution shall be made after 6 December 31, 1999. In each of the 6 calendar years 7 subsequent to the first contribution, if the trust or 8 foundation is in existence, the trustees shall contribute 9 to the Citizens Utility Board an amount equal to the 10 total expenditures by such organization in the prior 11 calendar year, as set forth in the report filed by the 12 Citizens Utility Board with the chairman of such trust or 13 foundation as required by subparagraph (3) of this 14 subsection. Such subsequent contributions shall be made 15 within 30 days of submission by the Citizens Utility 16 Board of such report to the Chairman of the trust or 17 foundation, but in no event shall any annual contribution 18 by the trustees to the Citizens Utility Board exceed 19 $1,000,000. Following such 7-year period, an Illinois 20 statutory consumer protection agency may petition the 21 trust or foundation for contributions to fund 22 expenditures of the type identified in paragraph (1), but 23 in no event shall annual contributions by the trust or 24 foundation for such expenditures exceed $1,000,000. 25 (3) The Citizens Utility Board shall file a report 26 with the chairman of such trust or foundation for each 27 year in which it expends any funds received from the 28 trust or foundation setting forth the amount of any 29 expenditures (regardless of the source of funds for such 30 expenditures) for: (i) the representation of the 31 interests of utility consumers before the Illinois 32 Commerce Commission, the Federal Energy Regulatory 33 Commission, and the Federal Communications Commission, 34 and (ii) the provision of consumer education on utility SB385 Enrolled -12- LRB9102460JSmb 1 service and prices and on benefits and methods of energy 2 conservation. Such report shall separately state the 3 total amount of expenditures for the purposes or 4 activities identified by items (i) and (ii) of this 5 paragraph, the name and address of the external recipient 6 of any such expenditure, if applicable, and the specific 7 purposes or activities (including internal purposes or 8 activities) for which each expenditure was made. Any 9 report required by this subsection shall be filed with 10 the chairman of such trust or foundation no later than 11 March 31 of the year immediately following the year for 12 which the report is required. 13 (Source: P.A. 91-50, eff. 6-30-99.) 14 Section 99. Effective date. This Act takes effect upon 15 becoming law.