Full Text of SB0751 95th General Assembly
SB0751sam001 95TH GENERAL ASSEMBLY
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Sen. John J. Cullerton
Filed: 4/30/2008
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| AMENDMENT TO SENATE BILL 751
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| AMENDMENT NO. ______. Amend Senate Bill 751 by replacing | 3 |
| everything after the enacting clause with the following:
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| "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)
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| Sec. 1. Definitions. For the purpose of this Act:
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| (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 education | 12 |
| created by the State, the Illinois
National Guard, the | 13 |
| Comprehensive Health Insurance Board, any poison control
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| center designated under the Poison Control System Act that | 15 |
| receives State
funding, or any other agency or instrumentality | 16 |
| of the State. It
does not mean any local public entity as that |
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| term is defined in Section
1-206 of the Local Governmental and | 2 |
| Governmental Employees Tort Immunity
Act or a pension fund.
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| (b) The term "employee" means any present or former elected | 4 |
| or
appointed officer, trustee or employee of the State, or of a | 5 |
| pension
fund,
any present or former commissioner or employee of | 6 |
| the Executive Ethics
Commission or of the Legislative Ethics | 7 |
| Commission, any present or former
Executive, Legislative, or | 8 |
| Auditor General's Inspector General, any present or
former | 9 |
| employee of an Office of an Executive, Legislative, or Auditor | 10 |
| General's
Inspector General, any present or former member of | 11 |
| the Illinois National
Guard
while on active duty, individuals | 12 |
| or organizations who contract with the
Department of | 13 |
| Corrections, the Department of Juvenile Justice, the | 14 |
| Comprehensive Health Insurance Board, or the
Department of | 15 |
| Veterans' Affairs to provide services, individuals or
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| organizations who contract with the Department of Human | 17 |
| Services (as
successor to the Department of Mental Health and | 18 |
| Developmental
Disabilities) to provide services including but | 19 |
| not limited to treatment and
other services for sexually | 20 |
| violent persons, individuals or organizations who
contract | 21 |
| with the Department of
Military
Affairs for youth programs, | 22 |
| individuals or
organizations who contract to perform carnival | 23 |
| and amusement ride safety
inspections for the Department of | 24 |
| Labor, individual representatives of or
designated | 25 |
| organizations authorized to represent the Office of State | 26 |
| Long-Term
Ombudsman for the Department on Aging, individual |
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| representatives of or
organizations designated by the | 2 |
| Department on Aging in the performance of their
duties as elder | 3 |
| abuse provider agencies or regional administrative agencies
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| under the Elder Abuse and Neglect Act, individuals or | 5 |
| organizations who perform
volunteer services for the State | 6 |
| where such volunteer relationship is reduced
to writing, | 7 |
| individuals who serve on any public entity (whether created by | 8 |
| law
or administrative action) described in paragraph (a) of | 9 |
| this Section,
individuals or not for profit organizations who, | 10 |
| either as volunteers, where
such volunteer relationship is | 11 |
| reduced to writing, or pursuant to contract,
furnish | 12 |
| professional advice or consultation to any agency or | 13 |
| instrumentality of
the State, individuals who serve as foster | 14 |
| parents for the Department of
Children and Family Services when | 15 |
| caring for a Department ward, and individuals
who serve as | 16 |
| arbitrators pursuant to Part 10A of
Article II of the Code of | 17 |
| Civil Procedure and the rules of the Supreme Court
implementing | 18 |
| Part 10A, each as now or hereafter amended, but does not mean | 19 |
| an
independent contractor except as provided in this Section. | 20 |
| The term includes an
individual appointed as an inspector by | 21 |
| the Director of State Police when
performing duties within the | 22 |
| scope of the activities of a Metropolitan
Enforcement Group or | 23 |
| a law enforcement organization established under the
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| Intergovernmental Cooperation Act. An individual who renders | 25 |
| professional
advice and consultation to the State through an | 26 |
| organization which qualifies as
an "employee" under the Act is |
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| also an employee. The term includes the estate
or personal | 2 |
| representative of an employee.
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| (c) The term "pension fund" means a retirement system or | 4 |
| pension
fund created under the Illinois Pension Code.
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| (Source: P.A. 93-617, eff. 12-9-03.)
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| (5 ILCS 350/2) (from Ch. 127, par. 1302)
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| Sec. 2. Representation and indemnification of State | 8 |
| employees.
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| (a) In the event that any civil proceeding is commenced | 10 |
| against any
State employee arising out of any act
or omission | 11 |
| occurring within the scope of the employee's State employment,
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| the Attorney General shall, upon timely and appropriate notice | 13 |
| to him by
such employee, appear on behalf of such employee and | 14 |
| defend
the action. In the event that any civil proceeding
is | 15 |
| commenced against any physician who is an employee of the | 16 |
| Department
of Corrections , the Department of Juvenile Justice, | 17 |
| or the Department of Human Services (in a position relating to
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| the Department's mental health and developmental disabilities | 19 |
| functions)
alleging death or bodily injury or other injury to | 20 |
| the person
of the complainant resulting from and arising out of | 21 |
| any act or omission
occurring on or after December 3, 1977 | 22 |
| within the scope of the employee's
State employment, or against | 23 |
| any physician who is an employee of the
Department of Veterans' | 24 |
| Affairs alleging death or bodily injury or other
injury to the | 25 |
| person of the complainant resulting from and arising out of
any |
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| act or omission occurring on or after the effective date of | 2 |
| this
amendatory Act of 1988 within the scope of the employee's | 3 |
| State
employment, or in the event that any civil proceeding is | 4 |
| commenced
against any attorney who is an employee of the State | 5 |
| Appellate Defender
alleging legal malpractice or for other | 6 |
| damages resulting from and arising
out of any legal act or | 7 |
| omission occurring on or after December 3, 1977,
within the | 8 |
| scope of the employee's State employment,
or in the event that | 9 |
| any civil proceeding is commenced against any
individual or | 10 |
| organization who contracts with the Department of Labor to
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| provide services as a carnival and amusement ride safety | 12 |
| inspector alleging
malpractice, death or bodily injury or other | 13 |
| 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
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| 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 represent | 21 |
| and defend the employee in the proceeding. The giving of
this | 22 |
| notice to the Attorney General shall constitute an agreement by | 23 |
| the
State employee to cooperate with the Attorney General in | 24 |
| his defense of
the action and a consent that the Attorney | 25 |
| General shall conduct the
defense as he deems advisable and in | 26 |
| the best interests of the employee,
including settlement in the |
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| Attorney General's discretion. In any such
proceeding, the | 2 |
| State shall pay the court costs and litigation expenses
of | 3 |
| defending such action, to the extent approved by the Attorney | 4 |
| General
as reasonable, as they are incurred.
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| (b) In the event that the Attorney General determines that | 6 |
| so
appearing and defending an employee either (1) involves an | 7 |
| actual or
potential conflict of interest, or (2) that the act | 8 |
| or omission which
gave rise to the claim was not within the | 9 |
| scope of the employee's State
employment or was intentional, | 10 |
| wilful or wanton misconduct, the Attorney
General shall decline | 11 |
| in writing to appear or defend or shall promptly
take | 12 |
| appropriate action to withdraw as attorney for such employee. | 13 |
| Upon
receipt of such declination or upon such withdrawal by the | 14 |
| Attorney
General on the basis of an actual or potential | 15 |
| conflict of interest, the
State employee may employ his own | 16 |
| attorney to appear and defend, in
which event the State shall | 17 |
| pay the employee's court costs, litigation
expenses and | 18 |
| attorneys' fees to the extent approved by the Attorney
General | 19 |
| 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 | 21 |
| that the
act or omission was not within the scope of | 22 |
| employment, or was
intentional, wilful or wanton misconduct, | 23 |
| and a court or jury finds that
the act or omission of the State | 24 |
| employee was within the scope of
employment and was not | 25 |
| intentional, wilful or wanton misconduct, the
State shall | 26 |
| indemnify the State employee for any damages awarded and
court |
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| 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' | 4 |
| fees to the
extent approved by the Attorney General as | 5 |
| reasonable.
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| In the event that the defendant in the proceeding is an | 7 |
| elected State
official, including members of the General | 8 |
| Assembly, the elected State
official may retain his or her | 9 |
| attorney, provided that said attorney
shall be reasonably | 10 |
| acceptable to the Attorney General. In such case
the State | 11 |
| shall pay the elected State official's court costs, litigation
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| expenses, and attorneys' fees, to the extent approved by the | 13 |
| Attorney
General as reasonable, as they are incurred.
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| (b-5) The Attorney General may file a counterclaim on | 15 |
| behalf of a State
employee, provided:
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| (1) the Attorney General determines that the State | 17 |
| employee is entitled to
representation in a civil action | 18 |
| under this Section;
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| (2) the counterclaim arises out of any act or omission | 20 |
| occurring within
the scope of the employee's State | 21 |
| employment that is the subject of the civil
action; and
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| (3) the employee agrees in writing that if judgment is | 23 |
| entered in favor of
the employee, the amount of the | 24 |
| judgment shall be applied to offset any
judgment that may | 25 |
| be entered in favor of the plaintiff, and then to reimburse
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| the State treasury for court costs and litigation expenses |
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| required to pursue
the counterclaim. The balance of the | 2 |
| 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 | 5 |
| shall also be
provided in any case where the plaintiff seeks | 6 |
| damages or any equitable
relief as a result of any decision, | 7 |
| ruling or order of a judge made in the
course of his or her | 8 |
| judicial or administrative duties, without regard to
the theory | 9 |
| of recovery employed by the plaintiff. Indemnification shall be
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| for all damages awarded and all court costs, attorney fees and | 11 |
| litigation
expenses assessed against the judge. When a judge | 12 |
| has been convicted of a
crime as a result of his or her | 13 |
| intentional judicial misconduct in a trial,
that judge shall | 14 |
| not be entitled to indemnification and representation
under | 15 |
| this subsection in any case maintained by a party who seeks | 16 |
| damages
or other equitable relief as a direct result of
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| judge's intentional judicial misconduct.
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| (d) In any such proceeding where notice in accordance with | 19 |
| this Section
has been given to the Attorney
General, unless the | 20 |
| court or jury finds that the
conduct or inaction which gave | 21 |
| rise to the claim or cause of action was
intentional, wilful or | 22 |
| wanton misconduct and was not intended to serve
or benefit | 23 |
| interests of the State, the State shall indemnify the State
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| employee for any damages awarded and court costs and attorneys' | 25 |
| fees
assessed as part of any final and unreversed judgment, or | 26 |
| shall pay such
judgment. Unless the
Attorney General determines |
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| that the conduct or inaction which gave rise
to the claim or | 2 |
| cause of action was intentional, wilful or wanton
misconduct | 3 |
| 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 | 5 |
| discretion and
with the employee's consent,
and the State shall | 6 |
| indemnify the employee for any damages, court costs
and | 7 |
| attorneys' fees agreed to as part of the settlement, or shall | 8 |
| pay
such settlement. Where the
employee is represented by | 9 |
| private counsel, any settlement must be so
approved by the | 10 |
| Attorney General and the court having jurisdiction,
which shall | 11 |
| obligate the State to indemnify the employee.
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| (e) (i) Court costs and litigation expenses and other costs | 13 |
| of providing a
defense or counterclaim, including attorneys' | 14 |
| fees obligated under this
Section, shall be paid from the State | 15 |
| Treasury on the warrant of the
Comptroller out of | 16 |
| appropriations made to the Department of Central Management
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| Services specifically designed for the payment of costs, fees | 18 |
| and expenses
covered by this Section.
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| (ii) Upon entry of a final judgment against the employee, | 20 |
| or upon the
settlement of the claim, the employee shall cause | 21 |
| to be served a copy of
such judgment or settlement, personally | 22 |
| or by certified or registered mail
within thirty days of the | 23 |
| date of entry or settlement, upon the chief
administrative | 24 |
| officer of the department, office or agency in which he is
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| employed. If not inconsistent with the provisions of this | 26 |
| Section, such
judgment or settlement shall be certified for |
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| payment by such chief
administrative officer and by the | 2 |
| Attorney General. The judgment or
settlement shall be paid from | 3 |
| the State Treasury on the warrant of the
Comptroller out of | 4 |
| appropriations made to the Department of Central
Management | 5 |
| Services specifically designed for the payment of claims | 6 |
| 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 | 9 |
| 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 | 13 |
| injury or
damage to property arising from motor vehicle | 14 |
| 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 | 17 |
| effective
date, if the State employee gives notice to the | 18 |
| Attorney General as
provided in this Section within 30 days of | 19 |
| the Act's effective date.
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| (j) The amendatory changes made to this Section by this | 21 |
| amendatory Act of
1986 shall apply to all proceedings filed on | 22 |
| or after the effective date of
this amendatory Act of 1986 and | 23 |
| to any proceeding pending on its effective
date, if the State | 24 |
| employee gives notice to the Attorney General as provided
in | 25 |
| this Section within 30 days of the effective date of this | 26 |
| amendatory Act
of 1986.
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| (k) This Act applies to all State officials who are serving | 2 |
| as trustees,
or their appointing authorities, of
a clean energy | 3 |
| 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 | 5 |
| Public Utilities Act.
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| (Source: P.A. 90-655, eff. 7-30-98; 91-781, eff. 6-9-00.)".
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