Findings and Determinations

5.1 In relation to the alleged contravention, the Commission is satisfied, on the evidence before it, that Mr Caffrey contravened section 178(2)(b) of the Local Government Act 2001 in the manner alleged in the Statement of Alleged Contravention. The Commission is satisfied on the balance of probabilities that the contravention was committed negligently to a high degree and that it was, in all the circumstances, a serious matter. By its nature, the Commission finds that the contravention is not continuing.

5.2 In coming to these determinations, the Commission rejects Mr Caffrey's submission that the contravention was committed inadvertently and that it was in all the circumstances minor in nature. In particular, the Commission finds that Mr Caffrey's failure to inform himself of the relevant statutory provisions could not be construed as inadvertent, particularly having regard to the requirement to sign a declaration on an annual basis in respect of the Code of Conduct. The failure is particularly significant, given that he would have signed such a declaration each year following the commencement of the relevant provision in 2004. The Commission notes that Mr Caffrey did not seek any advice regarding his obligations in the particular circumstances.

5.3 The Commission does not accept the argument put forward on behalf of Mr Caffrey that the requirement under section 178(2)(b) would merely result in two entries in the register of interests recording the fact of his ownership of this particular property, given his compliance with the requirement to make an annual declaration. The disclosure under section 178 is triggered by the relevant interest in conjunction with the performance of specific functions by the local authority. The Act requires that, where they arise, actual conflicts of interest are disclosed to the public, separately to the requirement to disclose potential conflicts in the annual declaration. In addition to such disclosure of a conflict of interest, the Act also requires that the manager neither influence nor seek to influence a decision of the local authority as regards the matter.

5.4 The Commission considers that section 178, which applies to a manager (now chief executive), has an important regulatory role in relation to those persons within its ambit. Lack of knowledge of its provisions and application is no excuse for a person in Mr Caffrey's position. The Commission considers that there is a fundamental duty on the part of all public officials to fully inform themselves of all relevant statutory duties. Mr Caffrey was negligent to a high degree in not doing so and given the importance of the provision and the degree of negligence, the Commission finds that the contravention by Mr Caffrey was a serious matter.

5.5 The Commission does not share the view of Mr Caffrey that, as the Cathaoirleach had no role in the executive function in question, there could be no obvious reason to inform him of the interest, other than the specified requirement under section 178(2)(b) which he says he was not aware of. The Commission is of the view that Mr Caffrey should have considered that he was required to inform the Cathaoirleach of his interest given that the manager's line of accountability is to the Cathaoirleach under the Ethical Framework set out in Part 15 of the Local Government Act.

5.6 Having regard to all of these findings, the Commission finds that Mr Caffrey did not act in good faith.

5.7 The Commission notes that Mr Caffrey cooperated with the preliminary inquiry by providing timely responses and with the investigation in not requiring the proving of evidential documents.