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91_SB0385ham002
LRB9102460JSpcam02
1 AMENDMENT TO SENATE BILL 385
2 AMENDMENT NO. . Amend Senate Bill 385, AS AMENDED,
3 by replacing the title with the following:
4 "AN ACT to amend the State Employee Indemnification Act
5 by changing Section 2."; and
6 by replacing everything after the enacting clause with the
7 following:
8 "Section 5. The State Employee Indemnification Act is
9 amended by changing Section 2 as follows:
10 (5 ILCS 350/2) (from Ch. 127, par. 1302)
11 Sec. 2. Representation and indemnification of State
12 employees.
13 (a) In the event that any civil proceeding is commenced
14 against any State employee arising out of any act or omission
15 occurring within the scope of the employee's State
16 employment, the Attorney General shall, upon timely and
17 appropriate notice to him by such employee, appear on behalf
18 of such employee and defend the action. In the event that
19 any civil proceeding is commenced against any physician who
20 is an employee of the Department of Corrections or the
21 Department of Human Services (in a position relating to the
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1 Department's mental health and developmental disabilities
2 functions) alleging death or bodily injury or other injury to
3 the person of the complainant resulting from and arising out
4 of any act or omission occurring on or after December 3, 1977
5 within the scope of the employee's State employment, or
6 against any physician who is an employee of the Department of
7 Veterans' Affairs alleging death or bodily injury or other
8 injury to the person of the complainant resulting from and
9 arising out of any act or omission occurring on or after the
10 effective date of this amendatory Act of 1988 within the
11 scope of the employee's State employment, or in the event
12 that any civil proceeding is commenced against any attorney
13 who is an employee of the State Appellate Defender alleging
14 legal malpractice or for other damages resulting from and
15 arising out of any legal act or omission occurring on or
16 after December 3, 1977, within the scope of the employee's
17 State employment, or in the event that any civil proceeding
18 is commenced against any individual or organization who
19 contracts with the Department of Labor to provide services as
20 a carnival and amusement ride safety inspector alleging
21 malpractice, death or bodily injury or other injury to the
22 person arising out of any act or omission occurring on or
23 after May 1, 1985, within the scope of that employee's State
24 employment, the Attorney General shall, upon timely and
25 appropriate notice to him by such employee, appear on behalf
26 of such employee and defend the action. Any such notice
27 shall be in writing, shall be mailed within 15 days after the
28 date of receipt by the employee of service of process, and
29 shall authorize the Attorney General to represent and defend
30 the employee in the proceeding. The giving of this notice to
31 the Attorney General shall constitute an agreement by the
32 State employee to cooperate with the Attorney General in his
33 defense of the action and a consent that the Attorney General
34 shall conduct the defense as he deems advisable and in the
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1 best interests of the employee, including settlement in the
2 Attorney General's discretion. In any such proceeding, the
3 State shall pay the court costs and litigation expenses of
4 defending such action, to the extent approved by the Attorney
5 General as reasonable, as they are incurred.
6 (b) In the event that the Attorney General determines
7 that so appearing and defending an employee either (1)
8 involves an actual or potential conflict of interest, or (2)
9 that the act or omission which gave rise to the claim was not
10 within the scope of the employee's State employment or was
11 intentional, wilful or wanton misconduct, the Attorney
12 General shall decline in writing to appear or defend or shall
13 promptly take appropriate action to withdraw as attorney for
14 such employee. Upon receipt of such declination or upon such
15 withdrawal by the Attorney General on the basis of an actual
16 or potential conflict of interest, the State employee may
17 employ his own attorney to appear and defend, in which event
18 the State shall pay the employee's court costs, litigation
19 expenses and attorneys' fees to the extent approved by the
20 Attorney General as reasonable, as they are incurred. In the
21 event that the Attorney General declines to appear or
22 withdraws on the grounds that the act or omission was not
23 within the scope of employment, or was intentional, wilful or
24 wanton misconduct, and a court or jury finds that the act or
25 omission of the State employee was within the scope of
26 employment and was not intentional, wilful or wanton
27 misconduct, the State shall indemnify the State employee for
28 any damages awarded and court costs and attorneys' fees
29 assessed as part of any final and unreversed judgment. In
30 such event the State shall also pay the employee's court
31 costs, litigation expenses and attorneys' fees to the extent
32 approved by the Attorney General as reasonable.
33 In the event that the defendant in the proceeding is an
34 elected State official, including members of the General
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1 Assembly, the elected State official may retain his or her
2 attorney, provided that said attorney shall be reasonably
3 acceptable to the Attorney General. In such case the State
4 shall pay the elected State official's court costs,
5 litigation expenses, and attorneys' fees, to the extent
6 approved by the Attorney General as reasonable, as they are
7 incurred.
8 (b-5) The Attorney General may file a counterclaim on
9 behalf of a State employee, provided:
10 (1) the Attorney General determines that the State
11 employee is entitled to representation in a civil action
12 under this Section;
13 (2) the counterclaim arises out of any act or
14 omission occurring within the scope of the employee's
15 State employment that is the subject of the civil action;
16 and
17 (3) the employee agrees in writing that if judgment
18 is entered in favor of the employee, the amount of the
19 judgment shall be applied to offset any judgment that may
20 be entered in favor of the plaintiff, and then to
21 reimburse the State treasury for court costs and
22 litigation expenses required to pursue the counterclaim.
23 The balance of the collected judgment shall be paid to
24 the State employee.
25 (c) Notwithstanding any other provision of this Section,
26 representation and indemnification of a judge under this Act
27 shall also be provided in any case where the plaintiff seeks
28 damages or any equitable relief as a result of any decision,
29 ruling or order of a judge made in the course of his or her
30 judicial or administrative duties, without regard to the
31 theory of recovery employed by the plaintiff.
32 Indemnification shall be for all damages awarded and all
33 court costs, attorney fees and litigation expenses assessed
34 against the judge. When a judge has been convicted of a crime
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1 as a result of his or her intentional judicial misconduct in
2 a trial, that judge shall not be entitled to indemnification
3 and representation under this subsection in any case
4 maintained by a party who seeks damages or other equitable
5 relief as a direct result of the judge's intentional judicial
6 misconduct.
7 (d) In any such proceeding where notice in accordance
8 with this Section has been given to the Attorney General,
9 unless the court or jury finds that the conduct or inaction
10 which gave rise to the claim or cause of action was
11 intentional, wilful or wanton misconduct and was not intended
12 to serve or benefit interests of the State, the State shall
13 indemnify the State employee for any damages awarded and
14 court costs and attorneys' fees assessed as part of any final
15 and unreversed judgment, or shall pay such judgment. Unless
16 the Attorney General determines that the conduct or inaction
17 which gave rise to the claim or cause of action was
18 intentional, wilful or wanton misconduct and was not intended
19 to serve or benefit interests of the State, the case may be
20 settled, in the Attorney General's discretion and with the
21 employee's consent, and the State shall indemnify the
22 employee for any damages, court costs and attorneys' fees
23 agreed to as part of the settlement, or shall pay such
24 settlement. Where the employee is represented by private
25 counsel, any settlement must be so approved by the Attorney
26 General and the court having jurisdiction, which shall
27 obligate the State to indemnify the employee.
28 (e) (i) Court costs and litigation expenses and other
29 costs of providing a defense or counterclaim, including
30 attorneys' fees obligated under this Section, shall be paid
31 from the State Treasury on the warrant of the Comptroller out
32 of appropriations made to the Department of Central
33 Management Services specifically designed for the payment of
34 costs, fees and expenses covered by this Section.
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1 (ii) Upon entry of a final judgment against the
2 employee, or upon the settlement of the claim, the employee
3 shall cause to be served a copy of such judgment or
4 settlement, personally or by certified or registered mail
5 within thirty days of the date of entry or settlement, upon
6 the chief administrative officer of the department, office or
7 agency in which he is employed. If not inconsistent with the
8 provisions of this Section, such judgment or settlement shall
9 be certified for payment by such chief administrative officer
10 and by the Attorney General. The judgment or settlement
11 shall be paid from the State Treasury on the warrant of the
12 Comptroller out of appropriations made to the Department of
13 Central Management Services specifically designed for the
14 payment of claims covered by this Section.
15 (f) Nothing contained or implied in this Section shall
16 operate, or be construed or applied, to deprive the State, or
17 any employee thereof, of any defense heretofore available.
18 (g) This Section shall apply regardless of whether the
19 employee is sued in his or her individual or official
20 capacity.
21 (h) This Section shall not apply to claims for bodily
22 injury or damage to property arising from motor vehicle
23 accidents.
24 (i) This Section shall apply to all proceedings filed on
25 or after its effective date, and to any proceeding pending on
26 its effective date, if the State employee gives notice to the
27 Attorney General as provided in this Section within 30 days
28 of the Act's effective date.
29 (j) The amendatory changes made to this Section by this
30 amendatory Act of 1986 shall apply to all proceedings filed
31 on or after the effective date of this amendatory Act of 1986
32 and to any proceeding pending on its effective date, if the
33 State employee gives notice to the Attorney General as
34 provided in this Section within 30 days of the effective date
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1 of this amendatory Act of 1986.
2 (k) This Act applies to all State officials who are
3 serving as trustees of a clean energy community trust or as
4 members of a not-for-profit foundation or corporation
5 established pursuant to Section 16-111.1 of the Public
6 Utilities Act.
7 (Source: P.A. 89-507, eff. 7-1-97; 89-688, eff. 6-1-97;
8 90-655, eff. 7-30-98.)
9 Section 99. Effective date. This Act takes effect upon
10 becoming law.".