The right to indemnification provided for in § 4002 of this title shall automatically obtain upon the final determination of any court or administrative tribunal of competent jurisdiction that no claim or cause of action existed, or, but for the application of the Constitutions or laws of either the United States or the State of Delaware, that no such claim or cause of action would have existed, or upon a verdict or ruling in favor of the public officer, employee or member. If a court or administrative tribunal shall determine that no right to indemnification exists because of the absence of 1 or more of the elements of immunity set forth in § 4001 of this title, said determination shall be final and binding at such time as any and all rights of appeal from the decision giving rise to such determination shall have been exhausted. If, for whatever reason, including a settlement agreed upon by the parties, the court or administrative tribunal having jurisdiction shall fail or refuse to make the determination required by this section, then the indemnification shall only be granted as to public officers, employees or members of the State upon the affirmative recommendation of the appropriate department head, or a majority of the members of the governing body of the board, commission or agency, whichever shall apply, and the concurrence of the Governor and the Attorney General or their designees. Any political subdivision of the State which shall hereafter provide indemnification as authorized by this chapter shall establish its own procedure for determining eligibility for its officers and employees in the absence of the determination of a court of competent jurisdiction.
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