15.3.5 Proceedings that name staff or elected members as defendants
- In legal proceedings involving the council, the appropriate party is Auckland Council rather than a specific decision-maker or part of council. The 'party' is the person or organisation which brings the action or defends the action.
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Elected members or council staff may occasionally be named as defendants in court proceedings in relation to the exercise of powers in their council role. In these situations, the council should be substituted as the correct party. If this does not occur, the practice is for the council to indemnify elected members or council staff and to conduct the proceedings on their behalf.
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In some cases, an elected member or staff member may be sued for acts in their official capacity but which have a more personal aspect. For example, an elected member may be sued in defamation because of the contents of a particular speech or public statement. Alternatively, proceedings may be instituted alleging that a council decision-maker has acted dishonestly or in bad faith.
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The extent to which the decision-maker will be personally liable in these cases will depend on the law and facts of the particular matter.
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By their very nature, cases brought against a decision-maker personally raise issues about whether he/she has acted within the scope of his/her legal authority. The council may not indemnify the decision-maker if he/she has acted greatly beyond the scope of his/her authority.
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There is no absolute legal right to indemnity just because a person is acting as a council decision-maker.
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When a decision-maker is personally sued or threatened with legal action and is unsure whether he or she should be indemnified, he/she should seek the Chief Executive’s agreement (in consultation with the General Counsel) in advance to meet his or her legal expenses.
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The General Counsel (acting under delegation from the Chief Executive) may in some situations retain private counsel for a decision-maker.