As a result of the increasing risk of potential legal action being taken or threatened against individual council members or employees, it may be appropriate for local governments to assist councillors and council employees by adopting a policy(s) to fund or partially fund the cost of providing legal representation in the appropriate circumstances.
In accordance with legislation requirements, local governments must maintain both public liability insurance and professional indemnity insurance for their respective council. It is important to note that each local government is responsible for organising their own insurance and may choose an insurer of their choice when providing cover for their council.
When developing a suitable policy and procedure, local governments should be transparent and accountable when providing assistance and associated costs for councillors and employees so that the community maintains confidence that public funds are being expended in an appropriate way.
Some matters for consideration in developing an appropriate policy covering legal assistance and associated eligible expenses should include the following:
- when it is appropriate to provide legal assistance to a council representative
- who is authorised to make the decision that financial support would be provided
- the limits or levels of assistance that are to be given, including costs to be covered
- the criteria for providing additional support and obligations on a council representative receiving assistance
- the circumstances in which approval for assistance may be revoked and repayment of costs sought, such as when it is found the councillor has acted dishonestly or negligently
- the process to procure legal assistance either internally within council or externally, particularly where a councillor requests legal advice of a general nature.
It is recommended that the policy covering legal assistance and associated eligible expenses for a councillor be included within the councillor expenses reimbursement policy. In addition to this, it is also recommended that councils adopt a similar policy for council employees to cover circumstances where legal assistance is to be provided by the council.
The model policy produced by the Western Australian Government which is a useful guide when considering the development of the policies covering legal assistance and associated eligible expenses for councillors and employees.