4.1 The issue to be determined by the Commission was whether Mr Caffrey contravened the Local Government Act as set out in the Statement of Alleged Contravention.
4.2 The alleged contravention concerns the obligations of a county manager (now chief executive) under section 178(2)(b) of the Local Government Act (Appendix 2) to disclose in writing to the Cathaoirleach of the local authority the nature of a pecuniary or other beneficial interest in, or which is material to, any matter which is proposed or otherwise arises from or as regards the performance by the authority of any of its functions under this or any other enactment.
4.3 Section 15 of the Housing Act 1988 (Appendix 2) provides, inter alia, that the Minister for the Environment, Community and Local Government may, with the consent of the Minister for Finance, pay to a housing authority such grant or subsidy as may be prescribed in respect of the provision of assistance to an approved housing body. The Muiríosa Foundation is an approved housing body.
4.4 On 31 July 2013, Longford County Council submitted an application to the Department of the Environment, Community and Local Government under the Capital Assistance Scheme, pursuant to section 15 of the Housing Act 1988, for payment of a grant to the Council which it would then forward to the Muiríosa Foundation by way of a loan to allow the Foundation to purchase a property, 33 The Mill, Clondra, Co. Longford. It was stated that the property would be used to house two persons with disabilities.
4.5 In making an application under the Housing Act 1988, the Council (as a housing authority) was performing a function under that enactment.
4.6 The property in respect of which the application was submitted, 33 The Mill, Clondra, Co. Longford, was at all material times owned by Mr Tim Caffrey. He declared his ownership of the property on his annual declaration of interests dated 15 January 2013, made pursuant to his obligations under section 171 of the Local Government Act.
4.7 The application was subsequently approved by the Department, although the loan was never advanced by the Council to the Foundation. Accordingly, the purchase of the property did not proceed as the Foundation informed the Council that it had no suitable tenants to reside in the premises and in those circumstances it had no option but to withdraw its application for loan funding.
4.8 Section 178 applies specifically to a county manager (now chief executive) of a local authority and provides for disclosure of a pecuniary or other beneficial interest in the circumstances set out in section 178(1) of the Local Government Act:
"This section applies where the manager for a local authority has actual knowledge that he or she or a connected person has a pecuniary or other beneficial interest in, or which is material to, any matter which is proposed or otherwise arises from or as regards the performance by the authority of any of its functions under this or any other enactment."
4.9 Section 178(2)(b) provides:
"The manager to whom subsection (1) relates shall comply with the following requirements:..... (b) he or she shall, as soon as may be, disclose in writing to the Cathaoirleach of the local authority the nature of his or her interest or the fact of a connected person's interest, and the Cathaoirleach shall furnish such written disclosure to the ethics registrar without delay."
4.10 Section 178(3) provides:
"A disclosure furnished under subsection (2) shall be recorded by the ethics registrar in the register of interests."
4.11 Mr Caffrey gave evidence to the Commission hearing, stating that he acknowledged and accepted that he
"failed to notify the Cathaoirleach of Longford County Council of the nature of my interest in a house that was the subject of an application by the Council for funding for a grant under the Capital Assistance Scheme."
4.12 The following submissions/evidence were advanced by or on behalf of Mr Caffrey:
- As stated by Mr Caffrey's solicitors in their letter of 17 September 2015, Mr Caffrey stated that he inadvertently contravened section 178(2)(b) of the Local Government Act by failing to disclose in writing to the Cathaoirleach of Longford County Council the nature of his interest in the property at 33 The Mill, Clondra, Co. Longford.
- He stated that at all times he acknowledged his interest in the property through his annual declaration to the Ethics Registrar under section 171 of the Local Government Act. He stated that his failure to inform the Cathaoirleach was due to the fact he was not aware of the existence of such a requirement. He stated that he had notified all appropriate County Council staff involved in processing the application for the Muiríosa Foundation of his ownership of the property. In his evidence to the hearing, he said:
"I should have written to the people but I was not aware that I was required by that section of the Act to do so, but the four people were made aware of it and they have accepted that in their statements."
- It was claimed on his behalf that the Manager's Order of 10 June 2013 delegated full managerial responsibility for dealing with this matter to Mr Barry Lynch, Head of Finance and Director of Services.
- Furthermore, it was claimed that the application was withdrawn by the Muiríosa Foundation and it would never have succeeded as it did not comply with the strict criteria involved in such an application.
- He said that it did not occur to him that the Cathaoirleach could have any role in processing an application as the elected members did not have a role in the processing of such applications to the Department under the Capital Assistance Scheme.
- He said he took complete responsibility for his failure to be fully aware of all statutory requirements that attached to his position.
- He was appointed County Manager (now Chief Executive) in March 2001. He stated that he was aware that employees in situations of conflict of interest had to make disclosure to him, but was not aware that such disclosures had to be in writing.
- He stated that his understanding was that as this was an executive function, no question of disclosure to the Cathaoirleach arose.
- He requested the Commission to find that the contravention was committed inadvertently and it was in all the circumstances minor in nature.
4.13 In giving evidence to the hearing, Mr Caffrey read out a statement in which, inter alia, he said that he was not aware of the requirements of section 178(2)(b) of the Local Government Act; believed that his obligation was to comply with the requirements of the Code of Conduct for Employees (Appendix 2) and that it did not occur to him that the Cathaoirleach could have any role in this matter as the processing of the application was not a reserved function and the elected members did not have a role in the processing of applications to the Department under the Capital Assistance Scheme.
4.14 Under cross-examination at the hearing, Mr Caffrey stated that he was aware of the obligations under section 171 of the Local Government Act to make declarations of interests and also of the obligations in section 179 of the Local Government Act of employees who have a potential conflict of interest to make disclosure to the Chief Executive, although he was not aware that such employees would have to have made a written disclosure.
4.15 In his annual declaration of interests signed by him on 15 January 2013, Mr Caffrey declared:
"I hereby undertake to have regard to and be guided by the Code of Conduct for Employees in the exercise of my functions. (The Code of Conduct for Employees was issued by the Minister under section 169 of the Local Government Act 2001.)"
4.16 In response to further cross-examination at the hearing, Mr Caffrey stated that he had read the Code of Conduct, although he did not read it before or after he signed the declaration in that regard. Counsel for the Commission put to him the provisions of section 3.5 of the Code of Conduct concerning the statutory obligations of employees to disclose to the manager (now chief executive) any pecuniary or beneficial interest in, or material to, any matter relating to the local authority's functions with which they are concerned in the course of their duties. Counsel also put to him the specific provisions in paragraph 3.5 which states:
"Specific statutory requirements also apply in relation to disclosure by managers."
4.17 Mr Caffrey did not recall this particular provision of the Code of Conduct, notwithstanding that he stated that he had read the Code.
4.18 In an email dated 18 March 2014, which Mr Caffrey sent to the Inquiry Officer, Mr O'Neill, in which he asserted that he had notified four council employees of his interest in the property as soon as he became aware that the application was being prepared, he stated:
"I can also confirm that this information was given by me verbally to all concerned, at which time I made it expressly clear that the application was to be considered entirely objectively in accordance with the normal criteria for such applications."
4.19 He repeated this in his statement to the Commission hearing, in the following terms:
"I organised that I was fully distanced from the relevant decision making process which had been delegated by order to Barry Lynch, and I made sure that Mr. Lynch and the three other members of the Executive involved in the decision were informed of my interest."
4.20 As noted in paragraph 3.1 above, Mr Caffrey consented to the documentation and the statements included in the Inquiry Officer's report being admitted into evidence without formal proof. These included statements by Ms Anne Glancy and Ms Anna Lane, Housing Department, Longford County Council, made to the Inquiry Officer and set out in his reports of his meetings with Ms Glancy and Ms Lane.
4.21 The Inquiry Officer's report of a meeting on 25 March 2014 with Ms Glancy, stated that she "was never formally notified by anybody about Mr Caffrey's ownership of the property. She said that she became aware of Mr Caffrey's ownership of the property through dealing with the CAS application from the Muiríosa Foundation. She said that she did know... that Mr Tim Caffrey had a house in Clondra but she did not know what specific house."
4.22 The Inquiry Officer's report of a meeting on 25 March 2014 with Ms Lane stated that "at no stage was she formally notified about Mr Caffrey's ownership of the property. I also asked her if she knew how many other people were aware that the property was owned by Mr Tim Caffrey and she replied that it was generally known among staff dealing with the CAS application that Mr Caffrey owned the property."
4.23 Mr Caffrey did not contest the contents of these statements in his evidence to the Commission. The statements would tend to contradict his assertions that he had notified all appropriate County Council staff involved in processing the application for the Muiríosa Foundation of his ownership of the property, and that he had made it expressly clear that the application was to be considered entirely objectively in accordance with the normal criteria for such applications. The Commission does not consider it necessary to resolve this conflict of evidence, having regard to Mr Caffrey's admission of the contravention.