Bill Text: IL HB4119 | 2021-2022 | 102nd General Assembly | Introduced

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Bill Title: Amends the State Employee Indemnification Act. Allows the Attorney General to decline in writing to appear or defend and to promptly take appropriate action to withdraw as attorney on behalf of a State employee when an act or omission which gave rise to a claim against the employee was not within the scope of the employee's State employment, not including withdrawal for intentional, wilful, or wanton misconduct. Makes conforming changes.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2022-02-18 - Rule 19(a) / Re-referred to Rules Committee [HB4119 Detail]

Download: Illinois-2021-HB4119-Introduced.html

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102ND GENERAL ASSEMBLY State of Illinois 2021 and 2022 HB4119 Introduced , by Rep. La Shawn K. Ford SYNOPSIS AS INTRODUCED:
5 ILCS 350/2 from Ch. 127, par. 1302
Amends the State Employee Indemnification Act. Allows the Attorney General to decline in writing to appear or defend and to promptly take appropriate action to withdraw as attorney on behalf of a State employee when an act or omission which gave rise to a claim against the employee was not within the scope of the employee's State employment, not including withdrawal for intentional, wilful, or wanton misconduct. Makes conforming changes.
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FISCAL NOTE ACT MAY APPLY
A BILL FOR
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AN ACT concerning government.
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

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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

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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

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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

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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

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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

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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

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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.)