5.1 As the Commission set out in the report of its investigation of alleged contraventions by Councillor Pádraig Doherty, Donegal County Council (June 2014), the general principle underlying the payment of travel and subsistence expenses is recognition of entitlement to payment towards the recompense of expense necessarily incurred in the performance of official functions. The Commission regards the making of claims by councillors whether for travel expenses or subsistence allowances as actions on their part which require diligence and care. There is an element of trust in relation to making such claims. Particular care is required where there are claims to different State agencies. The proper claiming of expenses and subsistence allowances is in principle a serious matter for compliance by councillors, not least to maintain and enhance public trust and confidence in local government. The seriousness of the matter is not determined solely by the quantum at issue.
5.2 The Commission had regard to the evidence presented to it in the form of documents and statements and at the hearing and also to the written submissions made to it, which are included in Appendix 4.
5.3 In relation to alleged contraventions 1, 4 and 7, the Commission finds that Senator Ó Domhnaill was not entitled under Part II, Paragraph 6 of the Ministerial Directions contained in Circular LG. 49/2 to claim and receive expenses as he did from both Donegal County Council and Údarás na Gaeltachta in respect of his attendance at a meeting of the ACCC conference in Dundalk on 9, 10 and 11 March 2006 and at a DSP meeting in Letterkenny on 10 March 2006.
5.4 In relation to alleged contraventions 2, 5 and 8, the Commission finds that Senator Ó Domhnaill was not entitled under Part II, paragraph 6 of the Ministerial Directions contained in Circular LG. 49/2 to claim and receive expenses as he did from both Donegal County Council and Údarás na Gaeltachta in respect of his attendance at an Institute of Public Administration Training Seminar in Carrickmacross, County Monaghan on 26 to 27 April 2006 and at a Donegal Sports Partnership meeting on 27 April 2006 in Letterkenny, County Donegal.
5.5 In relation to alleged contraventions 3, 6 and 9, the Commission finds that Senator Ó Domhnaill was not entitled under Part II, paragraph 6 of the Ministerial Directions contained in Circular LG. 49/2 to claim and receive expenses as he did from both Donegal County Council and Údarás na Gaeltachta in respect of his attendance at a Marine Tourism Conference in Carlingford, County Louth on 30 May to 1 June 2006 and at a Donegal Sports Partnership event on 31 May 2006 in Dungloe, County Donegal.
5.6 The Commission does not accept the submission made on Senator Ó Domhnaill’s behalf that the Commission’s decision in its report of the investigation into Councillor Dessie Larkin entitled Senator Ó Domhnaill to temporarily or otherwise absent himself from the Dundalk Conference in order to attend an event of the Donegal Sports Partnership on behalf of Údarás na Gaeltachta even if as he claimed he was doing so on the basis that that choice would be more beneficial to his constituents. The Commission does not accept that the Senator had the right to pick and choose the degree of attendance at a conference to which he was sent by decision of the elected members to represent the county council. The Larkin case involved different facts and contraventions to the instant case. It is not on all fours with the present case and cannot be relied upon as a precedent.
5.7 The Commission does not accept the submission that claims by Senator Ó Domhnaill to Donegal County Council and to Údarás na Gaeltachta were not double expense claims, but rather were two distinct claims to two different public bodies arising out of different dates.
5.8 The Commission does not accept the Senator’s assertions or those made on his behalf that incorrect information on his claim forms were genuine or honest mistakes. In reaching this finding, it had regard to the pattern of such incorrect information and the fact that each instance of an alleged mistake was in his favour financially. The Commission regards the conduct of Senator Ó Domhnaill as calculated to achieve the maximum financial return. The Commission does not accept the evidence of the Senator, which sought to correct his earlier accounts. The various acknowledgements by the Senator in relation to his mistakes indicate that his evidence was unsatisfactory and lacked credibility.
5.9 For convenience, the contraventions alleged against Senator Ó Domhnaill are now set out in turn, followed by the Commission's findings and determinations.
1. That Senator Ó Domhnaill contravened Section 168 of the Local Government Act 2001 by failing to maintain proper standards of integrity, conduct and concern for the public interest in carrying out his functions as a member of Donegal County Council in that he claimed travelling and subsistence expenses from Donegal County Council in respect of his attendance at the Association of County and City Councils’ Annual Conference 2006 at Fairways Hotel, Dundalk, County Louth on 9, 10 and 11 March 2006 and later also claimed travelling and subsistence expenses in respect of the same period from Údarás na Gaeltachta in respect of his attendance at a Donegal Sports Partnership meeting on 10 March 2006 in Letterkenny, County Donegal in contravention of paragraphs 6, 13, 18 and 22 of Part II of the Directions issued by the Minister for the Environment under Article 12 of the Local Government (Expenses of Local Authority Members) Regulations 1993 (SI 391 of 1993) made pursuant to Section 51 of the Local Government Act 1991.
The Commission is satisfied, on the evidence before it, that Senator Ó Domhnaill contravened section 168 of the Local Government Act 2001 in the manner alleged. The Commission is satisfied on the balance of probabilities that the contravention was committed intentionally and that it was, in all the circumstances, a serious matter.
2. That Senator Ó Domhnaill contravened Section 168 of the Local Government Act 2001 by failing to maintain proper standards of integrity, conduct and concern for the public interest in carrying out his functions as a member of Donegal County Council in that he claimed travelling and subsistence expenses from Donegal County Council in respect of his attendance at an Institute of Public Administration Training Seminar in Carrickmacross, County Monaghan on 26 to 27 April 2006 and later also claimed travelling expenses in respect of the same period from Údarás na Gaeltachta in respect of his attendance at a Donegal Sports Partnership meeting on 27 April 2006 in Letterkenny, County Donegal in contravention of paragraphs 6, 18 and 22 of Part II of the Directions issued by the Minister for the Environment under Article 12 of the Local Government (Expenses of Local Authority Members) Regulations 1991 (SI 391 of 1993) made pursuant to Section 51 of the Local Government Act 1991.
The Commission is satisfied, on the evidence before it, that Senator Ó Domhnaill contravened section 168 of the Local Government Act 2001 in the manner alleged. The Commission is satisfied on the balance of probabilities that the contravention was committed intentionally and that it was, in all the circumstances, a serious matter.
3. That Senator Ó Domhnaill contravened Section 168 of the Local Government Act 2001 by failing to maintain proper standards of integrity, conduct and concern for the public interest in carrying out his functions as a member of Donegal County Council in that he claimed travelling and subsistence expenses from Donegal County Council in respect of his attendance at a Marine Tourism Conference in Carlingford, County Louth on 30 May to 1 June 2006 and later also claimed travelling and subsistence expenses in respect of the same period from Údarás na Gaeltachta in respect of his attendance at a Donegal Sports Partnership meeting on 31 May 2006 in Dungloe, County Donegal in contravention of paragraphs 6, 13, 18 and 22 of Part II of the Directions issued by the Minister for the Environment under Article 12 of the Local Government (Expenses of Local Authority Members) Regulations 1993 (SI 391 of 1993) made pursuant to Section 51 of the Local Government Act 1991.
The Commission is satisfied, on the evidence before it, that Senator Ó Domhnaill contravened section 168 of the Local Government Act 2001 in the manner alleged. The Commission is satisfied on the balance of probabilities that the contravention was committed intentionally and that it was, in all the circumstances, a serious matter.
4. That Senator Ó Domhnaill contravened Section 169 (3) of the Local Government Act 2001 and acted in disregard of the provisions of paragraphs 2.1, 2.2, 2.3, and 8.1 of the Code of Conduct for Councillors (June 2004) in that he claimed travelling and subsistence expenses from Donegal County Council in respect of his attendance at the Association of County and City Councils’ Annual Conference 2006 at Fairways Hotel, Dundalk, County Louth on 9, 10 and 11 March 2006 and later also claimed travelling and subsistence expenses in respect of the same period from Údarás na Gaeltachta in respect of his attendance at a Donegal Sports Partnership meeting on 10 March 2006 in Letterkenny, County Donegal in contravention of paragraphs 6, 13, 18 and 22 of Part II of the Directions issued by the Minister for the Environment under Article 12 of the Local Government (Expenses of Local Authority Members) Regulations 1993 (SI 391 of 1993) made pursuant to Section 51 of the Local Government Act 1991.
The Commission is satisfied, on the evidence before it, that Senator Ó Domhnaill contravened section 169(3) of the Local Government Act 2001 and acted in disregard of the provisions of paragraphs 2.1, 2.2, 2.3 and 8.1 of the Code of Conduct for Councillors in the manner alleged. The Commission is satisfied on the balance of probabilities that the contraventions were committed intentionally and that they were, in all the circumstances, a serious matter.
5. That Senator Ó Domhnaill contravened Section 169 (3) of the Local Government Act 2001 and acted in disregard of the provisions of paragraphs 2.1, 2.2, 2.3, and 8.1 of the Code of Conduct for Councillors (June 2004) in that he claimed travelling and subsistence expenses from Donegal County Council in respect of his attendance at an Institute of Public Administration Training Seminar in Carrickmacross, County Monaghan on 26 to 27 April 2006 and later also claimed travelling expenses in respect of the same period from Údarás na Gaeltachta in respect of his attendance at a Donegal Sports Partnership meeting on 27 April 2006 in Letterkenny, County Donegal in contravention of paragraphs 6, 18 and 22 of Part II of the Directions issued by the Minister for the Environment under Article 12 of the Local Government (Expenses of Local Authority Members) Regulations 1993 (SI 391 of 1993) made pursuant to Section 51 of the Local Government Act 1991.
The Commission is satisfied, on the evidence before it, that Senator Ó Domhnaill contravened section 169(3) of the Local Government Act 2001 and acted in disregard of the provisions of paragraphs 2.1, 2.2, 2.3 and 8.1 of the Code of Conduct for Councillors in the manner alleged. The Commission is satisfied on the balance of probabilities that the contraventions were committed intentionally and that they were, in all the circumstances, a serious matter.
6. That Senator Ó Domhnaill contravened Section 169 (3) of the Local Government Act 2001 and acted in disregard of the provisions of paragraphs 2.1, 2.2, 2.3, and 8.1 of the Code of Conduct for Councillors (June 2004) in that he claimed travelling and subsistence expenses from Donegal County Council in respect of his attendance at a Marine Tourism Conference in Carlingford, County Louth on 30 May to 1 June 2006 and later also claimed travelling and subsistence expenses in respect of the same period from Údarás na Gaeltachta in respect of his attendance at a Donegal Sports Partnership meeting on 31 May 2006 in Dungloe, County Donegal in contravention of paragraphs 6, 13, 18 and 22 of Part II of the Directions issued by the Minister for the Environment under Article 12 of the Local Government (Expenses of Local Authority Members) Regulations 1993 (SI 391 of 1993) made pursuant to Section 51 of the Local Government Act 1991.
The Commission is satisfied, on the evidence before it, that Senator Ó Domhnaill contravened section 169(3) of the Local Government Act 2001 and acted in disregard of the provisions of paragraphs 2.1, 2.2, 2.3 and 8.1 of the Code of Conduct for Councillors in the manner alleged. The Commission is satisfied on the balance of probabilities that the contraventions were committed intentionally and that they were, in all the circumstances, a serious matter.
7. That being a "specified person" within the meaning of section 4(6) of the Standards in Public Office Act 2001, Senator Ó Domhnaill did a "specified act" within the meaning of section 2 of the Ethics in Public Office Act 1995 (inserted by Schedule 1 of the Standards in Public Office Act 2001), or a series of such acts, by way of his conduct in claiming travelling and subsistence expenses from Donegal County Council in respect of his attendance at the Association of County and City Councils’ Annual Conference 2006 at Fairways Hotel, Dundalk, County Louth on 9, 10 and 11 March 2006 and later also claimed travelling and subsistence expenses in respect of the same period from Údarás na Gaeltachta in respect of his attendance at a Donegal Sports Partnership meeting on 10 March 2006 in Letterkenny, County Donegal in contravention of paragraphs 6, 13, 18 and 22 of Part II of the Directions issued by the Minister for the Environment under Article 12 of the Local Government (Expenses of Local Authority Members) Regulations 1993 (SI 391 of 1993) made pursuant to Section 51 of the Local Government Act 1991, which conduct, and/or the circumstances of such conduct, was inconsistent with the proper performance by him of the functions of a member of Donegal County Council and of the functions of a member of Údarás na Gaeltachta and/or with the maintenance of confidence in such performance by the general public and which matter is one of significant public importance.
The Commission is satisfied, on the evidence before it, that Senator Ó Domhnaill did a "specified act" in the manner alleged. The Commission is satisfied on the balance of probabilities that the "specified act" was committed intentionally and that it was, in all the circumstances, a serious matter.
8. That being a "specified person" within the meaning of section 4(6) of the Standards in Public Office Act 2001, Senator Ó Domhnaill did a "specified act" within the meaning of section 2 of the Ethics in Public Office Act 1995 (inserted by Schedule 1 of the Standards in Public Office Act 2001), or a series of such acts, by way of his conduct in claiming travelling and subsistence expenses from Donegal County Council in respect of his attendance at an Institute of Public Administration Training Seminar in Carrickmacross, County Monaghan on 26 to 27 April 2006 and later also claimed travelling expenses in respect of the same period from Údarás na Gaeltachta in respect of his attendance at a Donegal Sports Partnership meeting on 27 April 2006 in Letterkenny, County Donegal in contravention of paragraphs 6, 18 and 22 of Part II of the Directions issued by the Minister for the Environment under Article 12 of the Local Government (Expenses of Local Authority Members) Regulations 1993 (SI 391 of 1993) made pursuant to Section 51 of the Local Government Act 2001, which conduct, and/or the circumstances of such conduct, was inconsistent with the proper performance by him of the functions of a member of Donegal County Council and of the functions of a member of Údarás na Gaeltachta and/or with the maintenance of confidence in such performance by the general public and which matter is one of significant public importance.
The Commission is satisfied, on the evidence before it, that Senator Ó Domhnaill did a "specified act" in the manner alleged. The Commission is satisfied on the balance of probabilities that the "specified act" was committed intentionally and that it was, in all the circumstances, a serious matter.
9. That being a "specified person" within the meaning of section 4(6) of the Standards in Public Office Act 2001, Senator Ó Domhnaill did a "specified act" within the meaning of section 2 of the Ethics in Public Office Act 1995 (inserted by Schedule 1 of the Standards in Public Office Act 2001), or a series of such acts, by way of his conduct in claiming travelling and subsistence expenses from Donegal County Council in respect of his attendance at a Marine Tourism Conference in Carlingford, County Louth on 30 May to 1 June 2006 and later also claimed travelling and subsistence expenses in respect of the same period from Údarás na Gaeltachta in respect of his attendance at a Donegal Sports Partnership meeting on 31 May 2006 in Dungloe, County Donegal in contravention of paragraphs 6, 13, 18 and 22 of Part II of the Directions issued by the Minister for the Environment under Article 12 of the Local Government (Expenses of Local Authority Members) Regulations 1993 (SI 391 of 1993) made pursuant to Section 51 of the Local Government Act 1991, which conduct, and/or the circumstances of such conduct, was inconsistent with the proper performance by him of the functions of a member of Donegal County Council and of the functions of a member of Údarás na Gaeltachta and/or with the maintenance of confidence in such performance by the general public and which matter is one of significant public importance.
The Commission is satisfied, on the evidence before it, that Senator Ó Domhnaill did a "specified act" in the manner alleged. The Commission is satisfied on the balance of probabilities that the "specified act" was committed intentionally and that it was, in all the circumstances, a serious matter.
5.10 The Commission is required by section 24 of the Ethics Act to determine whether the contravention or specified act was committed inadvertently, negligently, recklessly or intentionally. The Commission considers a determination that an act was committed intentionally to be at the highest end of the spectrum (with acts committed inadvertently at the lowest end). Such a determination arises where an act was done consciously with a view to the result intended. In determining the manner in which Senator Ó Domhnaill acted, the Commission had regard to the nature of the contraventions and acts and the system by which the contraventions and acts were committed. It also had regard to the explanations offered to the Commission in relation thereto and the attitude of Senator Ó Domhnaill to his conduct at the time thereof. The Commission, having regard to the evidence given, concludes that each of the contraventions and acts were at the highest level and were done intentionally by Senator Ó Domhnaill.
5.11 In making its findings concerning alleged contraventions 1 to 9 that the contraventions and “specified act” were done intentionally and that they were, in all the circumstances, serious matters, the Commission had regard to the differing explanations given by Senator Ó Domhnaill for his actions in this regard at various stages of the examination of this matter both within Donegal County Council and by the Commission.
5.12 By their nature, the Commission finds that the contraventions are not continuing ones.
5.13 The Commission has decided that it is not in a position to find that Senator Ó Domhnaill acted in good faith in relation to the contraventions.
5.14 As there has been no repayment of the expenses incorrectly claimed by Senator Ó Domhnaill and notwithstanding that it is open to him to make such a repayment, it is a matter for Donegal County Council and/or Údarás na Gaeltachta to take the appropriate steps to recoup the moneys involved.