[Added 12-9-1986 by Bill No. 86-9; amended 9-26-1989 by Bill No. 39-16; 3-18-2003 by Bill No.
03-6]
(a)
Indemnification. The County Commissioners of Worcester County, Maryland, shall indemnify those persons listed in Subsection (b) hereof with respect to any official act taken by such persons in the course of their official duties on behalf of the County Commissioners, subject to the limitations set forth in this section hereof. The indemnification shall, except as limited hereby, extend to the cost of defense and any award that may be realized against any such person. The County Commissioners shall have the right in all cases of indemnification to undertake and control the defense, including the selection of counsel, and any person indemnified hereunder shall cooperate in all respects with such defense and shall in no way act to prejudice such defense except as required by law.
(b)
Applicability. The indemnity afforded by this
Subtitle shall apply to the individual County Commissioners, all employees
of the County Commissioners and all individual members of County boards
and agencies which are appointed by the County Commissioners as well
as volunteers, who at the request of the County Commissioners and
under the control and direction of the County Commissioners were at
the time of the incident providing services or performing duties for
the County Government.
(c)
Exceptions. The indemnification afforded by
this Subtitle shall not apply to any of the following:
(1)
Criminal acts.
(2)
Willful, malicious misconduct.
(3)
Any act taken contrary to and against the previously, directly
and clearly communicated advice of legal counsel for the County.
(4)
Any act taken in bad faith.
(5)
Any act taken under the influence of alcohol or any other drug
which is not individually and specifically prescribed for the person
and taken in accordance with prescription instructions, unless insurance
coverage is provided and required by law and then only to the extent
of such coverage.
(6)
Any act taken outside the scope of County duty or employment
not in the course of County business.
(7)
Any act in violation of any law, statute or regulation where
the person acting knew or should have known of the existence and import
of the law, statute or regulation.
(8)
Any act taken in bad faith with malice and without justification
for the benefit of or in the interest of the employee or official
and not the County.
(9)
Any punitive or exemplary damages.
(d)
Reservation of rights. In the case of any
indemnity hereunder, the County Commissioners may require and have
the right to a reservation of rights signed by the person claiming
to be indemnified upon the commencement of defense. The reservation
of rights shall contain such terms and provisions as the County may
deem necessary and appropriate and shall protect the County Commissioners
in the event that the facts of the claim develop to the extent that
they indicate that the act is not subject to indemnification pursuant
to this Subtitle. The reservation of rights shall provide that any
costs or expenses advanced shall be repaid to the County Commissioners
should it be determined that the act is not subject to the indemnification
pursuant to this Subtitle.
(e)
Notification and cooperation. In order to
avail oneself of the indemnity provided under this Subtitle, the employee
or official must follow all prescribed procedures, immediately notify
the County Commissioners of any pending claim and must file or provide
all such reports and other documents or tangible evidence and perform
such acts as the Commissioners may reasonably require and fully cooperate
with the defense. The County Commissioners must be kept advised at
all times of any claim and the progress thereof for which any indemnity
under this Subtitle may apply.
(f)
Insurance. The County Commissioners may provide
insurance to cover acts indemnified hereunder, but such insurance
shall not limit the indemnity. Where the incident is covered by insurance
obtained by the employee or the official, such insurance shall have
primary liability to cover any act indemnified hereunder. This indemnity
shall not be construed to indemnify any insurance company. Any claim
required to be paid shall first be paid from any available insurance,
other than that obtained by the County including County self-insurance.
Any insurer having primary coverage hereunder shall have no right
of subrogation or contribution against the County or its insurer on
account of this section. The County Commissioners may assign its rights
to notification and cooperation as well as administrative provisions
of this Subtitle to its insurer.
(g)
Immunity. Nothing in this Subtitle shall constitute
or amount to a waiver or partial waiver, whatsoever, on behalf of
the County or anyone subject to the provisions hereof, of any immunity
or defense of any kind, whether statutory or at common law, either
limited or absolute.
(h)
Limitation of liability. Nothing in this Subtitle
shall be construed to negate, lessen or affect any limitation of liability
afforded under any other law, regulation or decision in any way or
preclude or limit any defenses available. Any indemnity shall be limited
by any applicable state or federal law.
(i)
Punitive damages. Nothing in this Subtitle
shall permit the County to be liable for or to indemnify against punitive
or exemplary damages unless such damages are covered by insurance
and then only where specifically permitted by the County Commissioners.
(j)
Local Government Tort Claims Act. The provisions
of the Local Government Tort Claims Act (Courts and Judicial Proceedings)
Title 5, Subtitle 3 of the Annotated Code of Maryland, as from time
to time amended, shall supersede and govern this Subtitle.
