(5 ILCS 350/0.01) (from Ch. 127, par. 1300)
Sec. 0.01.
Short title.
This Act may be cited as the
State Employee Indemnification Act.
(Source: P.A. 86-1324.)
(5 ILCS 350/1) (from Ch. 127, par. 1301)
Sec. 1. Definitions. For the purpose of this Act:
(a) The term “State” means the State of Illinois, the General
Assembly, the court, or any State office, department, division, bureau,
board, commission, or committee, the governing boards of the public
institutions of higher education created by the State, the Illinois
National Guard, the Illinois State Guard, the Comprehensive Health Insurance Board, any poison control
center designated under the Poison Control System Act that receives State
funding, or any other agency or instrumentality of the State. It
does not mean any local public entity as that term is defined in Section
1-206 of the Local Governmental and Governmental Employees Tort Immunity
Act or a pension fund.
(b) The term “employee” means: any present or former elected or
appointed officer, trustee or employee of the State, or of a pension
fund;
any present or former commissioner or employee of the Executive Ethics
Commission or of the Legislative Ethics Commission; any present or former
Executive, Legislative, or Auditor General’s Inspector General; any present or
former employee of an Office of an Executive, Legislative, or Auditor General’s
Inspector General; any present or former member of the Illinois National
Guard
while on active duty; any present or former member of the Illinois State
Guard
while on State active duty; individuals or organizations who contract with the
Department of Corrections, the Department of Juvenile Justice, the Comprehensive Health Insurance Board, or the
Department of Veterans’ Affairs to provide services; individuals or
organizations who contract with the Department of Human Services (as
successor to the Department of Mental Health and Developmental
Disabilities) to provide services including but not limited to treatment and
other services for sexually violent persons; individuals or organizations who
contract with the Department of
Military
Affairs for youth programs; individuals or
organizations who contract to perform carnival and amusement ride safety
inspections for the Department of Labor; individuals who contract with the Office of the State’s Attorneys Appellate Prosecutor to provide legal services, but only when performing duties within the scope of the Office’s prosecutorial activities; individual representatives of or
designated organizations authorized to represent the Office of State Long-Term
Ombudsman for the Department on Aging; individual representatives of or
organizations designated by the Department on Aging in the performance of their
duties as adult protective services agencies or regional administrative agencies
under the Adult Protective Services Act; individuals or organizations appointed as members of a review team or the Advisory Council under the Adult Protective Services Act; individuals or organizations who perform
volunteer services for the State where such volunteer relationship is reduced
to writing; individuals who serve on any public entity (whether created by law
or administrative action) described in paragraph (a) of this Section; individuals or not for profit organizations who, either as volunteers, where
such volunteer relationship is reduced to writing, or pursuant to contract,
furnish professional advice or consultation to any agency or instrumentality of
the State; individuals who serve as foster parents for the Department of
Children and Family Services when caring for youth in care as defined in Section 4d of the Children and Family Services Act; individuals who serve as members of an independent team of experts under the Developmental Disability and Mental Health Safety Act (also known as Brian’s Law); and individuals
who serve as arbitrators pursuant to Part 10A of
Article II of the Code of Civil Procedure and the rules of the Supreme Court
implementing Part 10A, each as now or hereafter amended; the members of the Certification Review Panel under the Illinois Police Training Act; the term “employee” does not mean an
independent contractor except as provided in this Section. The term includes an
individual appointed as an inspector by the Director of the Illinois State Police when
performing duties within the scope of the activities of a Metropolitan
Enforcement Group or a law enforcement organization established under the
Intergovernmental Cooperation Act. An individual who renders professional
advice and consultation to the State through an organization which qualifies as
an “employee” under the Act is also an employee. The term includes the estate
or personal representative of an employee.
(c) The term “pension fund” means a retirement system or pension
fund created under the Illinois Pension Code.
(Source: P.A. 101-81, eff. 7-12-19; 101-652, eff. 1-1-22; 102-538, eff. 8-20-21; 102-813, eff. 5-13-22.)
(5 ILCS 350/2) (from Ch. 127, par. 1302)
(Text of Section before amendment by P.A. 102-982)
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.
(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. 99-461, eff. 1-1-17.)
(Text of Section after amendment by P.A. 102-982)
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 crashes.
(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.
(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. 102-982, eff. 7-1-23.)
(5 ILCS 350/4) (from Ch. 127, par. 1304)
Sec. 4.
Reimbursement to former State employees.
A former State
employee who is a defendant or a witness in any civil proceeding covered
under this Act shall be entitled to reimbursement for travel expenses, per
diem and an attendance fee for each day the Attorney General certifies that
the former employee is reasonably required to spend in the defense of such
proceeding. Reimbursement for travel expenses and per diem shall be at the
rate allowed to State employees while on official business for the State.
The attendance fee shall be the amount of wages or other income actually
lost by the former employee on account of time spent in the defense of such proceedings.
(Source: P.A. 84-1431; 84-1438.)