ANY decision to retrieve money paid to the chief executive of Pembrokeshire County Council as part of controversial pension arrangements would lead to 'complex and lengthy' court proceedings, councillors have been warned.
Five councillors have submitted a notice of motion calling for the council to investigate the recovery of monies paid to chief executive Bryn Parry Jones, and one other as yet unnamed senior officer, as part of 'a pay supplement scheme'.
A public interest report published in January and by an auditor from the Wales Audit Office found that a decision to allow the scheme, where senior officers could opt out of the Local Government Pension Scheme and receive a payment equivalent to the employer's pension contribution instead, was 'unlawful'.
The council's head of legal and committee services, Huw Miller, will present a report on the matter to councillors at an extraordinary meeting of the full council today (Thursday) morning.
In it he says that just because the auditor says the decision was 'unlawful' does not mean it could be proved to the satisfaction of a court when it came to getting the money back.
"The term 'unlawful' used by the appointed auditor, is a determination in the context of the financial accounts," Mr Miller tells councillors. "The view expressed by the appointed auditor is not a definitive statement of the position of the law."
He goes on to say that lawyer Tim Kerr QC, employed by the council to look into the matter, 'did not consider that the decision was intrinsically unlawful'.
"There was no suggestion in the public interest report that any misconduct had been committed by anyone," said Mr Miller.
"The report also did not contain any allegation of activity of a criminal nature by any individual."
He tells councillors that the auditor had not made a recommendation that the money should be recovered and says it does not automatically follow that the council would be able to recover the payments. Specialist legal advise on the merits of pursuing it would be needed.
But he says the advice has already been given, as Mr Kerr told the council in February that the council was not bound to consider the return of monies already paid to any senior officer, because the officer was likely to have a defence of 'change of position' - them having left the Local Government Pension Scheme to make alternative arrangements.
"In the unlikely event that the council is now advised that recovery action could be taken, it would be necessary for legal proceedings in the civil courts for the recovery of the money," he says, adding that in court it would have to be proved that the decision was unlawful and detailed consideration would be given to all the issues including any defences on why the officers should keep the money.
"Even if advice is now received to the effect that recovery proceedings could be take, it would be impossible for any certainty to be given as to the likelihood of success in such proceedings. It is likely that any such proceedings would be complex and lengthy."
In the financial year 2012-13 the council paid out £22,269 to the chief executive under the scheme.
The last payment made to both officers was in January this year, bringing the total for the financial year 2013-14 to £23,337. Payments made were taxed at 40% and also subject to the payment of Naitonal Insurance contributions, councillors have been told.
The call to investigate recovering the money has been submitted by councillors Paul Miller, Mike Stoddart, Anthony Wilcox, Rod Bowen and Jacob Williams.