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Public Act 91-0781
SB385 Enrolled LRB9102460JSmb
AN ACT concerning the Illinois Clean Energy Community
Trust, amending named Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The State Employee Indemnification Act is
amended by changing Section 2 as follows:
(5 ILCS 350/2) (from Ch. 127, par. 1302)
Sec. 2. Representation and indemnification of State
employees.
(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, 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 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 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 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 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.
(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 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 unreversed judgment. In
such event the State shall also pay the employee's court
costs, litigation expenses and attorneys' fees to the extent
approved by the Attorney General as reasonable.
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 expenses, and attorneys' fees, to the extent
approved by the Attorney General as reasonable, as they are
incurred.
(b-5) The Attorney General may file a counterclaim on
behalf of a State employee, provided:
(1) the Attorney General determines that the State
employee is entitled to representation in a civil action
under this Section;
(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
(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 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.
(c) Notwithstanding any other provision of this Section,
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 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.
(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 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 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.
(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 Services specifically designed for the payment of
costs, fees and expenses covered by this Section.
(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 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.
(f) Nothing contained or implied in this Section shall
operate, or be construed or applied, to deprive the State, or
any employee thereof, of any defense heretofore available.
(g) This Section shall apply regardless of whether the
employee is sued in his or her individual or official
capacity.
(h) This Section shall not apply to claims for bodily
injury or damage to property arising from motor vehicle
accidents.
(i) This Section shall apply to all proceedings filed on
or 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.
(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.
(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 corporation established pursuant
to Section 16-111.1 of the Public Utilities Act.
(Source: P.A. 89-507, eff. 7-1-97; 89-688, eff. 6-1-97;
90-655, eff. 7-30-98.)
Section 10. The Public Utilities Act is amended by
changing Section 16-111.1 as follows:
(220 ILCS 5/16-111.1)
Sec. 16-111.1. Illinois Clean Energy Community Trust.
(a) An electric utility which has sold or transferred
generating facilities in a transaction to which subsection
(k) of Section 16-111 applies is authorized to establish an
Illinois clean energy community trust or foundation for the
purposes of providing financial support and assistance to
entities, public or private, within the State of Illinois
including, but not limited to, units of State and local
government, educational institutions, corporations, and
charitable, educational, environmental and community
organizations, for programs and projects that benefit the
public by improving energy efficiency, developing renewable
energy resources, supporting other energy related projects
that improve the State's environmental quality, and
supporting projects and programs intended to preserve or
enhance the natural habitats and wildlife areas of the State.
Provided, however, that the trust or foundation funds shall
not be used for the remediation of environmentally impaired
property. The trust or foundation may also assist in
identifying other energy and environmental grant
opportunities.
(b) Such trust or foundation shall be governed by a
declaration of trust or articles of incorporation and bylaws
which shall, at a minimum, provide that:
(1) There shall be 6 voting trustees of the trust
or foundation, one of whom shall be appointed by the
Governor, one of whom shall be appointed by the President
of the Illinois Senate, one of whom shall be appointed by
the Minority Leader of the Illinois Senate, one of whom
shall be appointed by the Speaker of the Illinois House
of Representatives, one of whom shall be appointed by the
Minority Leader of the Illinois House of Representatives,
and one of whom shall be appointed by the electric
utility establishing the trust or foundation, provided
that the voting trustee appointed by the utility shall be
a representative of a recognized environmental action
group selected by the utility. The Governor shall
designate select one of the 6 voting trustees to serve
as, once appointed, to be the first chairman of the trust
or foundation, who shall serve as chairman of the trust
or foundation at the pleasure of the Governor pending the
first election of officers. In addition, there shall be 4
non-voting trustees, one of whom shall be appointed by
the Director of the Department of Commerce and Community
Affairs, one of whom shall be appointed by the Director
of the Illinois Environmental Protection Agency, one of
whom shall be appointed by the Director of the Department
of Natural Resources, and one of whom shall be appointed
by the electric utility establishing the trust or
foundation, provided that the non-voting trustee
appointed by the utility shall bring financial expertise
to the trust or foundation and shall have appropriate
credentials therefor.
(2) All voting trustees and the non-voting trustee
with financial expertise shall be entitled to
compensation for their services as trustees, provided,
however, that no member of the General Assembly and no
employee of the electric utility establishing the trust
or foundation serving as a voting trustee shall receive
any compensation for his or her services as a trustee,
and provided further that the compensation to the
chairman of the trust shall not exceed $25,000 annually
and the compensation to any other trustee shall not
exceed $20,000 annually. All trustees shall be entitled
to reimbursement for reasonable expenses incurred on
behalf of the trust in the performance of their duties as
trustees. All such compensation and reimbursements shall
be paid out of the trust.
(3) Trustees shall be appointed within 30 days
after the creation of the trust or foundation and shall
serve for a term of 5 years commencing upon the date of
their respective appointments, until their respective
successors are appointed and qualified.
(4) A vacancy in the office of trustee shall be
filled by the person holding the office responsible for
appointing the trustee whose death or resignation creates
the vacancy, and a trustee appointed to fill a vacancy
shall serve the remainder of the term of the trustee
whose resignation or death created the vacancy.
(5) The trust or foundation shall have an
indefinite term, and shall terminate at such time as no
trust assets remain.
(6) The trust or foundation shall be funded in the
minimum amount of $250,000,000, with the allocation and
disbursement of funds for the various purposes for which
the trust or foundation is established to be determined
by the trustees in accordance with the declaration of
trust or the articles of incorporation and bylaws;
provided, however, that this amount may be reduced by up
to $25,000,000 if, at the time the trust or foundation is
funded, a corresponding amount is contributed by the
electric utility establishing the trust or foundation to
the Board of Trustees of Southern Illinois University for
the purpose of funding programs or projects related to
clean coal and provided further that $25,000,000 of the
amount contributed to the trust or foundation shall be
available to fund programs or projects related to clean
coal.
(7) The trust or foundation shall be authorized to
employ an executive director and other employees, to
enter into leases, contracts and other obligations on
behalf of the trust or foundation, and to incur expenses
that the trustees deem necessary or appropriate for the
fulfillment of the purposes for which the trust or
foundation is established, provided, however, that
salaries and administrative expenses incurred on behalf
of the trust or foundation shall not exceed $500,000 in
the first fiscal year after the trust or foundation is
established and shall not exceed $1,000,000 in each
subsequent fiscal year.
(8) The trustees may create and appoint advisory
boards or committees to assist them with the
administration of the trust or foundation, and to advise
and make recommendations to them regarding the
contribution and disbursement of the trust or foundation
funds.
(c)(1) In addition to the allocation and disbursement of
funds for the purposes set forth in subsection (a) of
this Section, the trustees of the trust or foundation
shall annually contribute funds in amounts set forth in
subparagraph (2) of this subsection to the Citizens
Utility Board created by the Citizens Utility Board Act;
provided, however, that any such funds shall be used
solely for the representation of the interests of utility
consumers before the Illinois Commerce Commission, the
Federal Energy Regulatory Commission, and the Federal
Communications Commission and for the provision of
consumer education on utility service and prices and on
benefits and methods of energy conservation. Provided,
however, that no part of such funds shall be used to
support (i) any lobbying activity, (ii) activities
related to fundraising, (iii) advertising or other
marketing efforts regarding a particular utility, or (iv)
solicitation of support for, or advocacy of, a particular
position regarding any specific utility or a utility's
docketed proceeding.
(2) In the calendar year in which the trust or
foundation is first funded, the trustees shall contribute
$1,000,000 to the Citizens Utility Board within 60 days
after such trust or foundation is established; provided,
however, that such contribution shall be made after
December 31, 1999. In each of the 6 calendar years
subsequent to the first contribution, if the trust or
foundation is in existence, the trustees shall contribute
to the Citizens Utility Board an amount equal to the
total expenditures by such organization in the prior
calendar year, as set forth in the report filed by the
Citizens Utility Board with the chairman of such trust or
foundation as required by subparagraph (3) of this
subsection. Such subsequent contributions shall be made
within 30 days of submission by the Citizens Utility
Board of such report to the Chairman of the trust or
foundation, but in no event shall any annual contribution
by the trustees to the Citizens Utility Board exceed
$1,000,000. Following such 7-year period, an Illinois
statutory consumer protection agency may petition the
trust or foundation for contributions to fund
expenditures of the type identified in paragraph (1), but
in no event shall annual contributions by the trust or
foundation for such expenditures exceed $1,000,000.
(3) The Citizens Utility Board shall file a report
with the chairman of such trust or foundation for each
year in which it expends any funds received from the
trust or foundation setting forth the amount of any
expenditures (regardless of the source of funds for such
expenditures) for: (i) the representation of the
interests of utility consumers before the Illinois
Commerce Commission, the Federal Energy Regulatory
Commission, and the Federal Communications Commission,
and (ii) the provision of consumer education on utility
service and prices and on benefits and methods of energy
conservation. Such report shall separately state the
total amount of expenditures for the purposes or
activities identified by items (i) and (ii) of this
paragraph, the name and address of the external recipient
of any such expenditure, if applicable, and the specific
purposes or activities (including internal purposes or
activities) for which each expenditure was made. Any
report required by this subsection shall be filed with
the chairman of such trust or foundation no later than
March 31 of the year immediately following the year for
which the report is required.
(Source: P.A. 91-50, eff. 6-30-99.)
Section 99. Effective date. This Act takes effect upon
becoming law.
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