While the number of complaints received by the Standards Commission remains low, 2010 saw an increase from 32 complaints in 2009 (six of which were valid within the terms of the Ethics Acts) to 56 of which 31 were valid. The Standards Commission found that two of the complaints provided a basis on which to initiate an investigation. In both of those cases, as reported below, it had appointed an Inquiry Officer to conduct preliminary enquiries into the complaints.
It also appointed an inquiry officer on two other occasions during 2010 and once to date in 2011. Given that before 2010 the Standards Commission had only appointed an Inquiry Officer on two occasions (in 2006 and 2008), four such appointments in a single year indicates a significant increase in the Standards Commission’s work in relation to complaints under the Ethics Acts. The Standards Commission wishes to express its gratitude to Mr Paddy Walsh who has performed his functions as Inquiry Officer on each occasion with efficiency and effectiveness.
The Commission received a complaint concerning Mr Kieran Lynn, Senior Executive Engineer, Mayo County Council. The complaint centred on alleged contraventions of Part 15 of the Local Government Act 2001 in relation to disclosures of interests and to Mr Lynn’s actions regarding works carried out to improve an access to his lands at Cushalogurt, Westport, County Mayo. Mr Lynn had approached three local councillors seeking the allocation of public monies by them under a notice of motion procedure to carry out works removing a bend in a road which would improve access to his lands.
The Standards Commission appointed an Inquiry Officer to conduct a preliminary enquiry into the complaint. Following consideration of the Inquiry Officer’s report, the Commission decided that it was appropriate to carry out an investigation under section 23 of the Ethics Act to determine whether Mr Lynn had contravened Part 15 of the Local Government Act or had done a ‘specified act’ within the meaning of the Ethics Acts. Investigation hearings were held on 8 November and 13 December 2010.
The Standards Commission published its report of the investigation in March 2011. The report set out its findings and determinations in respect of each alleged contravention. It found that Mr Lynn had contravened the provisions of Part 15 of the Local Government Act 2001 and had acted in disregard of the Code of Conduct for Employees (of local authorities). Four of the alleged contraventions related to failures by Mr Lynn to disclose interests in property in his annual declaration of interests. The Standards Commission found that Mr Lynn had contravened the Local Government Act in each of the four cases, that two of these were committed inadvertently, that two were committed negligently and that each was, in all the circumstances, minor in nature. In relation to these contraventions, the Standards Commission found Mr Lynn had acted in good faith.
The Standards Commission also found that Mr Lynn had contravened section 168 of the Local Government Act 2001 and acted in disregard of the provisions of the Code of Conduct for Employees, by using his official position in Mayo County Council, and the resources of the Council, for personal gain in that works were carried out to improve an access to his lands at Cushalogurt, Westport, County Mayo.
The Commission is satisfied that the contravention was committed intentionally and was, in all the circumstances, a serious matter. In relation to this contravention, the Standards Commission found Mr Lynn had not acted in good faith.
The Standards Commission sent its report to the complainant, to Mr Lynn, to the local authority and also to the Minister for Finance and to the Minister for the Environment, Heritage and Local Government.
The report of the investigation, including the transcript of the investigation hearing, is available on the website of the Standards Commission.
Following receipt by him of the Standards Commission’s report, Mr Peter Hynes, Mayo County Manager, reported on the matter to the elected members of the Council. Mr Hynes reported that the Standards Commission had reached “essentially the same” conclusions as had been reached in a previous examination of the complaints for the Council by a former Mayo Assistant County Manager. Mr Hynes had forwarded his report to the Minister for the Environment, Heritage and Local Government. Mr Hynes also informed the council that he had revised the procedures to be used where an employee has an interest in land which is the subject of a notice of motion proposal.
The Standards Commission wrote to the Minister and to Mr Hynes pointing out that its conclusions were not essentially the same as the Council’s. The Council’s investigation had not found that Mr Lynn had failed to disclose any interests. By contrast, the Standards Commission concluded that he had failed to do so on four occasions. In relation to the fifth contravention, the council’s investigation found that while Mr Lynn had not acted in accordance with the code of conduct for employees, it did not find any evidence of financial gain for Mr Lynn. The Standards Commission not only found a failure to have regard to the code, but also found that Mr Lynn contravened section 168 of the Local Government Act 2001 by using his official position in Mayo County Council, and the resources of the Council, for personal gain in that works were carried out to improve an access to his lands. The Standards Commission was satisfied that the contravention was committed intentionally and was, in all the circumstances, a serious matter. The Commission was concerned that Mr Hynes had appeared to misapprehend the Commission’s findings and determinations.
The Standards Commission also expressed its view to the Minister that this case illustrates serious deficiencies in the operation of the notice of motion procedure as operated by Mayo County Council. It expressed its concerned at the almost complete absence of records in the case relating to the use of significant public resources. It stated that while the new procedure adopted by Mayo County Council may result in some improvements as far as the use of the procedures by employees of that body, the notice of motion procedure itself does not appear to represent best practice in the disbursement of public funds and that the Standards Commission considers that it, and any other discretionary funds allocated to individual local authority members, ought to be reviewed on a national basis by the Minister, with a view to the adoption of procedures which are designed to ensure that scarce public resources are expended by local authorities in the public interest and not in the interests of private individuals, be they employees or members of local authorities or any other persons.
The Commission received a complaint from Councillor Brendan Byrne, then Mayor of Donegal County Council and Mr Michael McLoone, then County Manager, concerning Councillor Terence Slowey. The complaint centred on alleged contraventions of Part 15 of the Local Government Act 2001 in relation to the claiming of expenses from both Donegal County Council and the Border Regional Authority for attendance at conferences in Killarney and Clonakilty which took place over the weekend of 16-18 October 2008.
The Standards Commission appointed an Inquiry Officer to conduct a preliminary enquiry into the complaint. Following consideration of the Inquiry Officer’s report, the Commission decided that it was appropriate to carry out an investigation under section 23 of the Ethics Act to determine whether Councillor Slowey had contravened Part 15 of the Local Government Act or had done a ‘specified act’ within the meaning of the Ethics Acts. An investigation hearing was held on 14 March 2011.
The Standards Commission published its report of the investigation in April 2011. The report set out its findings and determinations in respect of each alleged contravention.
It found that Councillor Slowey contravened the provisions of Part 15 of the Local Government Act 2001, had acted in disregard of the Code of Conduct for Councillors and had done a ‘specified act’ within the meaning of the Standards in Public Office Act 2001 by claiming travelling expenses from Donegal County Council in respect of his attendance at the Third Sector Forum Seminar on Local Authority Financing Conference on 16 to 18 October 2008 in Killarney, Co. Kerry while also claiming travelling expenses from the Border Regional Authority in respect of his attendance at the Association of Irish Regions Conference on 17 October 2008 in Clonakilty, Co. Cork, in contravention of directions issued by the Minister for the Environment, Heritage and Local Government under article 16 of the Local Government (Expenses of Local Authority Members) Regulations 2006 (SI 668 of 2006) made pursuant to section 142(1) of the Local Government Act 2001. It also found that Councillor Slowey contravened the provisions of Part 15 of the Local Government Act 2001 and acted in disregard of the Code of Conduct for Councillors by not attending the whole of the seminar in Killarney.
The Standards Commission found that Councillor Slowey committed the contraventions recklessly and that they were, in all the circumstances, serious matters. In relation to these contraventions, the Standards Commission found Councillor Slowey had not acted in good faith.
In its report, the Commission stated that it regards the claiming of unwarranted expenses to be unacceptable and to be a serious matter.
It forwarded its report to Councillor Slowey, to the Manager and Mayor of Donegal County Council, to the Minister for Finance and to the Minister for the Environment, Heritage and Local Government. The report of the investigation, including the transcript of the investigation hearing, is available on the website of the Standards Commission.
The Committee on Members’ Interests of Seanad Éireann resolved at its meeting on 13 October 2010, pursuant to section 22(5) of the Ethics in Public Office Act 1995 as amended, that two complaints it had received concerning claims made by former Senator Ivor Callely under the Members’ Mobile Phones Direct Purchase Scheme should be investigated by the Standards in Public Office Commission.
On 16 November 2010, the Standards Commission appointed an Inquiry Officer to conduct a preliminary inquiry under Section 6 of the Standards in Public Office Act 2001 in relation to the complaints.
The Inquiry Officer presented a report to the Standards Commission which was considered by it at its meeting of 11 April 2011. Having considered the report, the Standards Commission formed the opinion that Senator Callely may have committed an offence relating to the performance of his functions as a member. Section 24(2) of the Ethics in Public Office Act 1995 provides:
where the (Standards) Commission, either during or at the conclusion of an investigation under section 23, is of opinion that the person the subject of the investigation may have committed an offence relating to the performance of his or her functions as a... member..., it shall prepare a report in writing in relation to the matter and furnish it together with any relevant document or other thing in its possession to the Director of Public Prosecutions...
Accordingly, the Standards Commission furnished a report in the matter to the Director of Public Prosecutions. Mr Callely ceased to be a member of Seanad Éireann on 25 April 2011.
The Standards Commission received a complaint from Deputy Phil Hogan, (now Minister for the Minister for the Environment, Heritage and Local Government) in July 2010 in relation to the actions of the then Minister for the Environment, Heritage and Local Government, Mr John Gormley. The Standards Commission appointed an Inquiry Officer to conduct a preliminary inquiry into the matters complained of. At the time of writing, the preliminary inquiry was ongoing.
The Standards Commission received a complaint in November 2010 regarding alleged contraventions of Part 15 of the Local Government Act 2001 by Councillor Oisín Quinn, Dublin City Council. The Standards Commission appointed an Inquiry Officer to conduct a preliminary inquiry into the complaint. At the time of writing, the preliminary inquiry was ongoing.
In its annual report for 2009, the Standards Commission noted that almost a decade after the enactment of the Standards in Public Office Act 2001, the adoption of a code of conduct for the wider public service under that Act is still awaited. It indicated that it had been made aware that the Department of Finance was actively pursuing the issue and that it expected that a draft code would be provided to the Standards Commission for consultation in accordance with the provisions of the legislation.
Despite that indication, there has been no movement on this matter in the intervening twelve months. The Standards in Public Office Act 2001 provides for the adoption of codes of conduct, which would set down the standards of conduct and integrity to be followed by public servants and public representatives in the performance of their functions. To date, codes have been published for office holders, TDs, Senators and civil servants. The intention of the Oireachtas in enacting the Standards in Public Office Act 2001 was that each public servant would be provided with a clear statement of the standards of conduct and integrity which they are required to follow in the course of their duties. It is the view of the Standards Commission that that intention should be given effect as a matter of urgency.
In April 2008, the Minister for the Environment, Heritage and Local Government published a Green Paper, Stronger Local Democracy - Options for Change, which included several suggestions for reform in the ethical area. These were reported on in the Commission’s annual report for 2008. The Department of the Environment, Heritage and Local Government had confirmed to the Standards Commission that its view was that the implementation of the ethical framework should be kept within local authorities as much as possible and that the role of the Standards Commission would be restricted to matters of significant concern. The Standards Commission’s view is that there should be an explicit complaints procedure in the ethical framework clearly setting out the responsibilities at local level and those of the Standards Commission. It was noted that there is provision under the Ethics Acts for statutory guidelines and advice to be given by the Standards Commission, which could usefully be applied under the ethical framework.
To date, no such legislation has been introduced. The Commission remains of the view that the procedures for examination and investigation under the framework are inadequate and that an explicit statutory procedure for complaints about local authority members and employees should be introduced as a priority.
In November 2009, the Northern Ireland Assembly Committee on Standards and Privileges wrote to the Standards Commission informing it that it had initiated an inquiry on the appointment of an Assembly Commissioner for Standards, on maintaining the Northern Ireland Assembly’s Code of Conduct and Guide to Rules Relating to the Conduct of Members (the Code of Conduct) and on handling alleged breaches in relation to the Code of Conduct. It invited the Standards Commission to provide any observations in relation to its inquiry. While the Standards Commission did not have any specific observations to make, the Chairman accepted a subsequent invitation to meet the Assembly Committee in February 2010 together with Ms Emily O’Reilly (Ombudsman) and the Committee on Members’ Interests of Dáil Éireann in Leinster House. The Chairman and officials of the Commission’s Secretariat provided information on the Commission’s role under the Ethics Acts in relation to complaints and codes of conduct. The meeting proved a useful forum for the exchange of views. The Standards Commission would welcome any future opportunity to meet with the Assembly Committee and the Committees on Members’ Interests.
The Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 was commenced with effect from 1 January 2011. The legislation amended the Ethics Acts in a number of respects to provide that in certain circumstances a person must disclose the interests of a ‘civil partner’ (see definition in Appendix 3). The Standards Commission will draft amended guidelines for office holders and public servants to reflect the amendments.
The Ethics in Public Office Acts require certain categories of person (an office holder in relation to the interests of a spouse, civil partner, child or child of a spouse, the holder of a designated directorship or the occupier of a designated position of employment in a public body, the Attorney General, or a special adviser) to prepare and furnish a statement of any registrable interests which could materially influence him or her in the performance of his or her official functions by reason of the fact that such performance could so affect those interests as to confer on or withhold from him or her or the spouse or child a substantial benefit. Where such a person has no such interests, no statement is required under the Ethics Acts.
Notwithstanding the fact that no statement was required in such circumstances, the Public Offices Commission considered in its annual report for 1998 that a statement of ‘nil’ interests be provided. Accordingly, that Commission in its guidelines for public servants recommended that a ‘nil’ statement, rather than no statement, should be furnished in such circumstances.
The Standards Commission reviewed this recommendation when drafting its eighth edition of the guidelines for public servants in 2010. It decided that, as there is no statutory basis for such ‘nil’ statements and as there was an undue administrative burden placed upon it and on other persons to whom statements are furnished, it would withdraw its recommendation. Accordingly, where a person has no interests which could materially influence him or her in the manner specified above, no statement is required under the Ethics Acts and no ‘nil’ statement is requested.
A special adviser is required under the Ethics Acts to prepare and furnish to the office holder who appointed him or her a statement of any registrable interests held by him or her which could materially influence him or her in the performance of his or her official functions by reason of the fact that such performance could so affect those interests as to confer on or withhold from him or her or his or her spouse or civil partner or child or child of a spouse a substantial benefit. The office holder is required under the Ethics Acts to lay any such statement before each House of the Oireachtas within 60 days of its receipt by him or her (a separate statement of any registrable interests of spouse or civil partner or child or child of a spouse is also required to be furnished, but is not laid before the Oireachtas).
Unlike statements of registrable interests furnished by members of the Oireachtas, which are published by the Clerk of Dáil Éireann or of Seanad Éireann as appropriate in a register of members’ interests, special advisers’ statements are not published. However, under the Standing Orders for each House, all documents laid before each House shall be considered public.
Accordingly, statements which have been furnished to the Standards Commission by special advisers may be viewed and copied by request to the Commission’s Secretariat.
The Standards Commission has reported in each of its annual reports since 2004 on the large increase in the scope of the Ethics Acts in terms of the numbers of public bodies in the public service in which the Minister for Finance has prescribed designated directorships and designated positions of employment. In 2009, there were over 870 public bodies including subsidiaries within remit.
Further regulations made by the Minister for Finance came into effect on 1 January 2011. As a result of these regulations, 68 bodies (including 43 subsidiaries) were included within the remit of the Ethics Acts, while 48 bodies (including 8 subsidiaries) were removed. Accordingly, there are now over 890 public bodies within the scope of the legislation.
In view of the ongoing process of rationalisation of bodies within the public service, the Standards Commission trusts that the Minister for Finance will ensure that the scope of the Ethics Acts is applied to all new public bodies in a timely manner.