4.1 The issues to be determined by the Commission were whether Senator Ó Domhnaill contravened the Local Government Act and had done a series of "specified acts" as set out in the nine alleged contraventions in the Statement of Alleged Contraventions.
4.2 The alleged contraventions concern the claiming of travelling and subsistence expenses from Donegal County Council and Údarás na Gaeltachta.
4.3 Each of the claims by Senator Ó Domhnaill for reimbursement of expenses from Donegal County Council was initiated by the completion of a written claim form, which, inter alia, contained the following declarations by him:
“(c) This claim is made strictly in accordance with the Local Government (Expenses of Local Authority Members) Regulations 1993 and directions thereunder.
(d) The statements and particulars furnished herein are complete and accurate in all respects.
(e) No other payment has been made to me or is payable to me in respect of the time(s), journey(s) or other matters set out herein.
(f) I have not made, and will not make, any other claims for payment in respect of the time(s) journey(s) or other matters set out herein.”
4.4 The Minister for the Environment, Heritage and Local Government issued Directions in Circular No. LG. 49/2 dated 17 December 1993 setting out the detailed rules for the claiming of travelling and subsistence expenses by members of local authorities. Relevant extracts are set out in Appendix 2.
4.5 A written form for claiming expenses from Údarás na Gaeltachta also had to be completed.
4.6 Board members of Údarás na Gaeltachta are entitled to claim travelling and subsistence allowances in line with the rules applying to civil servants. Such allowances are paid to Board members at the highest civil service rates. It should be noted that in accordance with civil service rules, subsistence allowances are payable to Board members in respect of absences of more than (a) five hours and (b) ten hours, whereas under Circular No. LG. 49/2 subsistence allowances are payable to councillors in respect of absences of more than (a) three hours and (b) seven hours.
4.7 The nine alleged contraventions can be viewed as three groups of three.
Allegations 1, 4 & 7 ACCC Conference, Dundalk/DSP meeting
4.8 In his capacity as a member of Donegal County Council, Senator Ó Domhnaill attended the Association of County and City Council's (ACCC) Annual Conference 2006 at Fairways Hotel, Dundalk, Co Louth on 9, 10 and 11 March 2006. He absented himself from the conference on 10 March 2006 to attend a DSP meeting in Letterkenny.
4.9 On 20 March 2006 Senator Ó Domhnaill submitted his claim to the Council for travelling and subsistence allowances as follows –
Thursday; 9 March 1.00pm - departed from home in Falcarragh to go to Dundalk
Saturday, 11 March 4.30pm - arrived home to Falcarragh
4.10 On 24 October 2006, Senator Ó Domhnaill submitted his claim to Údarás na Gaeltachta for travel and subsistence allowances as follows –
Friday, 10 March 3.30pm – departed from home to go to DSP meeting in Letterkenny
9.00pm – arrived home
4.11 The payments made to him in respect of his claims for travelling and subsistence allowances to the Council and to Údarás na Gaeltachta were as follows:
Donegal County Council payment
136 miles x 2 = €348.43
2 overnights = €276.82
1 x 3 hour = €16.32
Total = €641.57
In his claim form, Senator Ó Domhnaill claimed that the distance to Dundalk was 179 miles. The Council calculated the distance to be 136 miles and paid the claim on this basis, which Senator Ó Domhnaill accepts is the correct distance.
The Council made a payment of €641.57 to him in respect of his claim. It also paid a conference fee of €190.00 directly to the conference organisers. The conference fee does not form part of the alleged contraventions considered by the Commission in this investigation.
Údarás na Gaeltachta payment
62 miles = €76.95
1 x 5 hour = €16.32
Total = €93.27
4.12 The issue is that Senator Ó Domhnaill was paid for travelling and subsistence allowances by the Council in respect of his attendance at the Dundalk conference from 9 to 11 March 2006 and he was also paid such allowances by Údarás na Gaeltachta for attending a DSP meeting during one of the days he was said to have attended the Dundalk conference.
4.13 The Ministerial Directions setting out the rules for councillors claiming travelling and subsistence expenses provide, inter alia, that a local authority shall not pay any travelling allowance to a member in respect of any journey or part of a journey in respect of which an allowance is paid by, or is payable by, or is claimed from, another public authority - Circular LG 49/2, paragraph 6 – Appendix 2.
4.14 In his evidence, Senator Ó Domhnaill has said that he made a number of mistakes in completing his expenses claim forms as follows –
a) he had claimed that the distance from home to Dundalk was 179 miles; he accepted that the decision of the Council to pay travelling expenses for 136 miles each way was correct and said that “the claim of 179 miles was a genuine error.” and
b) In addition, in paragraph 1.1 of his letter of 21st March 2012 to the Mayor and County Manager of Donegal County Council, he claimed that attendance at the afternoon session of the conference in Dundalk on 10 March 2006 was an optional portion of the conference and fundamentally a recreational session and that one of the options available during that session was for conference participants to play golf. In this regard, Mr Liam Kenny, Director, Association of County and City Councils (ACCC), stated:
"The Friday afternoon programme comprised mainstream conference presentations including: "Building communities in city, suburb and county" -- Mr Nicky Brennan, President elect, GAA and "Rolling out the Roads Agenda" -- Mr. Fred Barry, CEO, National Roads Authority. Golf was not a timetabled feature of the programme -- however the contact details of a conference participant interested in arranging a golf game were given on the conference leaflet."
In his replies to the Inquiry Officer, Senator Ó Domhnaill stated:
“I simply made a mistake in my recollection and fully accept your clarification. You will no doubt have noted in this regard that the letter referred to was written over six years following the conference.”
4.15 In explaining why he had remained in Falcarragh after the DSP meeting on 27 April 2006 rather than returning directly to Dundalk, Senator Ó Domhnaill gave evidence that:
a) At 9.30 pm that evening he had received a 45 minute session of physio treatment from a man who is based in Falcarragh. He had not mentioned this in previous explanations of his actions. He said that this was a personal matter and that wasn't to do with his work as a councillor or member of Údarás na Gaeltachta and
b) In addition that the matters which he would have had to deal with would involve telephone messages received in his office together with mail etc. He said that some of the queries were medically related and therefore required quite urgent attention. He said that in a county like Donegal, the regional hospital there is dealing with 145,000 people and people are waiting for operations and that he would be dealing with a lot of people (in such circumstances).
c) He left Falcarragh at approximately 10:30 p.m. and returned to the conference in Dundalk.
Allegations 2, 5 &8Training Seminar in Carrickmacross, Co Monaghan
4.16 Senator Ó Domhnaill attended an IPA Training Seminar in Carrickmacross, Co Monaghan on 26 to 27 April 2006. Within the period covered by this claim he attended a DSP meeting in Letterkenny.
4.17 On 13 June 2006, Senator Ó Domhnaill submitted a claim for travelling and subsistence allowance to Donegal County Council containing the following information –
Wednesday, 26 April 5.00pm- departed from his home in Falcarragh for Carrickmacross
Thursday, 27 April 8.00 pm - arrived home to Letterkenny
4.18 On 24 October 2006, Senator Ó Domhnaill submitted his claim to Údarás na Gaeltachta for travel and subsistence allowances as follows –
Thursday, 27 April 5.00pm departed home to attend DSP meeting in Letterkenny
8.00 pm - arrived home
4.19 The payments made to him in respect of his claims for travelling and subsistence allowances to the Council and to Údarás na Gaeltachta were as follows:
Donegal County Council payment
123 miles x 2 = €315.13
1 overnight = €138.41
1 x 3 hour = €16.32
Total = €469.86
In his claim form, Senator Ó Domhnaill claimed that the distance to Carrickmacross was 163 miles. The Council calculated the distance to be 123 miles and paid the claim on this basis, which Senator Ó Domhnaill accepts is the correct distance
The Council made a payment of €469.86 to him in respect of his claim. It also paid a seminar fee of €190 directly to the seminar organisers. The seminar fee does not form part of the alleged contraventions considered by the Commission in this investigation.
Údarás na Gaeltachta payment
62 miles = €76.95
Senator Ó Domhnaill was not entitled to payment of a subsistence allowance from Údarás na Gaeltachta in this instance as his absence was less than five hours.
4.20 The issue is that Senator Ó Domhnaill was paid travelling allowances by the Council in respect of his attendance at the Carrickmacross training seminar on 26 to 27 April 2006 and he was also paid such allowances by Údarás na Gaeltachta for attending a DSP meeting in Letterkenny during one of the days he was said to have attended the Carrickmacross seminar.
4.21 The Ministerial Directions setting out the rules for councillors claiming travelling and subsistence expenses provide, inter alia, that a local authority shall not pay any travelling allowance to a member in respect of any journey or part of a journey in respect of which an allowance is paid by, or is payable by, or is claimed from, another public authority - Circular LG 49/2, paragraph 6 – Appendix 2.
4.22 In his evidence, Senator Ó Domhnaill has said that he made a number of mistakes in completing his expenses claim forms as follows –
a) he had submitted the DSP meeting as held on April 24th and not April 27th;
b) he had entered his return home time from Carrickmacross on 27th April as 8pm , when it should have been 3 p.m.
c) he had claimed that the distance from home to Carrickmacross was 163 miles; he accepted that the decision of the Council to pay travelling expenses for 123 miles each way was correct and said that the original 163 figure was presented in error.
Allegations 3, 6 & 9Marine Tourism Conference in Carlingford, Co Louth
4.23 Senator Ó Domhnaill attended a Marine Tourism Conference in Carlingford, Co Louth on 30 May to 1 June 2006. He absented himself from the conference on 31 May 2006 to attend a DSP event in Dungloe, Co Donegal.
4.24 On 13 June 2006, Senator Ó Domhnaill submitted a claim (dated 13 April 2006) for travelling and subsistence allowance to Donegal County Council containing the following information –
Tuesday, 30 May 3.00pm- departed from home in Falcarragh for Carlingford
Friday, 2 June 2.00pm- arrived home
4.25 On 24 October 2006, Senator Ó Domhnaill submitted his claim to Údarás na Gaeltachta for travel and subsistence allowances as follows –
Wednesday, 31 May - departed home to attend DSP meeting in Letterkenny
- arrived home
[NOTE: no times given for departure or arrival home]
4.26 The payments made to him in respect of his claims for travelling and subsistence allowances to the Council and to Údarás na Gaeltachta were as follows:
Donegal County Council payment
142 miles x 2 = €363.80
2 overnights (30 + 31) = €276.82
1 x 7 hour = €40.01
Total = €680.63
In his claim form, Senator Ó Domhnaill claimed that the distance to Carlingford was 176 miles. The Council calculated the distance to be 142 miles and paid the claim on this basis, which Senator Ó Domhnaill accepts is the correct distance
The Council made a payment of €680.63 to him in respect of his claim. It also paid a conference fee of €150 directly to the conference organisers. The conference fee does not form part of the alleged contraventions considered by the Commission in this investigation.
Údarás na Gaeltachta payment
54 miles = €67.00
1 x 5 hour = €16.32
Total €83.32
4.27 The issue is that Senator Ó Domhnaill was paid for travelling and subsistence allowances by the Council in respect of his attendance at the Carlingford conference from 30 May to 1 June 2006 and he was also paid such allowances by Údarás na Gaeltachta for attending a DSP event in Dungloe during one of the days he was said to have attended the Carlingford conference.
4.28 The Ministerial Directions setting out the rules for councillors claiming travelling and subsistence expenses provide, inter alia, that a local authority shall not pay any travelling allowance to a member in respect of any journey or part of a journey in respect of which an allowance is paid by, or is payable by, or is claimed from, another public authority - Circular LG 49/2, paragraph 6 – Appendix 2.
4.29 In his evidence, Senator Ó Domhnaill has said that he made a number of mistakes in completing his expenses claim forms as follows –
a) in his evidence to the Commission hearing on 9 May 2016, he stated that he had made a mistake in submitting a claim in October 2006 for travelling expenses for a day (31 May 2006) in respect of which he had already made a claim for travelling expenses to Donegal County Council.
b) he had claimed that the distance from home to Carlingford was 176 miles; the Council paid travelling expenses for 142 miles.
4.30 Decisions on attendance by Councillors at conference on behalf of the local authority are decided by the Council members. Senator Ó Domhnaill informed the Inquiry Officer that the exact dates of meetings of the DSP were generally arranged at the previous meeting and that Senator Ó Domhnaill would therefore have known that he was due to attend the Carlingford conference from 30 May to 1 June 2006, when the DSP meeting was being arranged for 31 May 2006. When he was asked by the Inquiry Officer why he did not withdraw from the Dundalk conference or attempt to have the meeting set for another date, he stated:
“It would have been inappropriate and indeed unfair in my view upon the other members and directors of the Sports Partnership, to seek to have the meeting re-scheduled. I made the decision on the Friday morning 10th March to attend. This was a decision which I made in the best interests of all I serve. As already detailed, the decision to attend the DSP meeting meant that I incurred additional travel costs for which I was not recompensed. I made the decision, however, for what I perceived to be the best interests of all of those I served.”
4.31 It is clear from the evidence of Senator Ó Domhnaill that his political and other commitments were most extensive and time consuming on a regular basis. His actions had the effect of prioritising his local constituents in dealing with their needs and requests. He was well aware of these commitments. The time demands were such that he knew when attending these conferences that it was likely that he was going to have to cut short or interrupt his attendance to deal with his domestic, business and political commitments. In turn, this impacted upon his entitlement to claim travelling and subsistence expenses.
4.32 The time span between the journeys undertaken and his submission of claims for expenses to Údarás na Gaeltachta had the potential for mistakes to occur. He acknowledged such mistakes and claimed that they were genuine.
4.33 The Commission notes that, in the case of each of his three claims for travelling expenses to Donegal Council, the errors he made in estimating the distance between his home and his destination were all in his favour and, had the Council accepted the claims on face value, would have provided him with unwarranted expenses payments. Senator Ó Domhnaill stated in his evidence that each of these errors were genuine. He said that
“generally… I would have put in an approximate distance…, and the Council would always, you know they would always do the AA route finder for the members and put in the correct distance.”
4.34 The examination of Senator Ó Domhnaill’s claims by Donegal County Council in the first instance, by the Commission’s Inquiry Officer and ultimately in the course of the Commission’s investigation all took place some considerable time after the events originally occurred. Senator Ó Domhnaill provided detailed accounts of his actions to the Council, to the Inquiry Officer and to the Commission. However, at the investigation hearing when he was asked about his recollection of things and his ability to say that certain times were inaccurate, he stated (in Irish):
“Well, I had to go through this very precisely inasmuch as I could because my name was out there. I had to remember, put some sort of memory together on this and to think and to speak to people, to speak to my family, which I did, speak to my secretary in the office, speak to everybody I could, even to speak to my trainer and coach as late as last night…”
4.35 Senator Ó Domhnaill gave the following evidence to the Commission:
- Notwithstanding that he signed claim forms for travel and subsistence expenses and submitted them to Donegal County Council, which stated “This claim is made in accordance with the Local Government (Expenses of Local Authorities Members) Regulations 1993 and directions thereunder”, he stated that he had not read the regulations or directions and he could not remember receiving a copy of the regulations.
- He had a diary to record his appointments and this would have recorded that he was at a conference in Dundalk on 9, 10 and 11 March 2006 and that he was in Letterkenny on 10 March 2006. He stated that in his opinion he was attending on behalf of two different organisations, fulfilling, in his opinion, “the best thing for the people of Donegal.”
- He made a claim for subsistence for 10 March 2006 to Údarás na Gaeltachta, having already received payment from Donegal County Council for the same date. He believed that he was entitled to two subsistence payments and stated that he felt honestly that he was trying to serve the two purposes.
- He believed that he was doing the right thing in attending the meetings.
- In a letter of 15 December 2011 to Mr Liam Ward, Donegal County Council, he stated “I attended the conference in Dundalk on 9th, 10th and 11th March 2006. I left the conference at lunchtime Friday the 10th to travel to Letterkenny as I had a meeting of the Donegal Sports Partnership of which I was and remain a Board member. This meeting finished at approximately 8 p.m. and at this point in the knowledge that the conference events would be finished on my return, I decided to travel to my home in Falcarragh and picked up my mail for Thursday and Friday."
- However, he gave evidence to the investigation hearing on 9 May 2016 that (in Irish): “I went from the conference to my office and my home and then back to the meeting in Letterkenny that afternoon because I had time to do that.”
- In cross-examination, the Senator confirmed that he was aware of the rules governing expenses claims. He confirmed that he had kept a diary and that it was filled in contemporaneously as a record of his attendance at various events. Under cross-examination about the events of 10 March 2006, the Senator accepted that he had claimed and received two subsistence payments and stated (in Irish) “in my opinion on those occasions there was black and white of a difference between them. I was attending on behalf of two different organisations, fulfilling, in my opinion, the best thing for the people of Donegal. Q. You mean that you are entitled to two subsistence payments if you are working for two organisations? A. Well, that’s a question for the Commission, I suppose. ... I believe I was entitled to those subsistence payments because I hadn’t made a claim to the Authority, to Údarás na Gaeltachta.” He agreed, however, that when he made his claim to Údarás na Gaeltachta, he had checked his diary and seen that he had already been paid a subsistence allowance for the relevant day.
The Code of Conduct for Councillors
4.36 The Local Government Act 2001 (Commencement) Order 2004 (SI 217 of 2004) commenced certain provisions of the Local Government Act concerning codes of conduct with effect from 21 May 2004. Following the making of that order, the Minister for the Environment, Heritage and Local Government, pursuant to section 169(1) of the Local Government Act published in June 2004 a Code of Conduct for the guidance of members of local authorities. Provisions of the Act regarding a requirement that a notice be issued to members drawing their attention to the Code and to the obligation to have regard to and be guided by it in the performance of their functions, were commenced with effect from 1 January 2005 under S.I. 217 of 2004.
Section 169(3)(a) of the Act provides:
“Each member shall have regard to and be guided by the Code of Conduct in the exercise of his or her functions”.
Section 169(4)(a)(i) provides:
“As soon as practicable after the election or co-option of a person as a member of a local authority, the Ethics Registrar shall supply to each such member a copy of the National Code of Conduct for Local Authority Members.”
Section 169(4)(a)(ii) provides:
“The notice issued by the ethics registrar under section 174 shall draw the member’s attention to the code of conduct and to subsection (3)(a).”
4.37 Each member of a local authority had to furnish an annual declaration of declarable interests to the Ethics Registrar, in a form which had been furnished to him/her by the Ethics Registrar together with a notice drawing the member’s attention to the Code of Conduct (section 169(4)(a)(ii)) and to the requirement that each member shall have regard to and be guided by the Code of Conduct (section 169(3)(a)). Article 10 of the Local Government Act 2001 (Part 15) Regulations 2004 (SI 770 of 2004) amended with effect from 1 January 2005 the declaration form to be completed by members of local authorities to include the following undertaking:
“I hereby undertake to have regard to and be guided by the Code of Conduct for Councillors in the exercise of my functions. (The Code of Conduct for Councillors was issued by the Minister under section 169 of the Local Government Act 2001.)”
4.38 The Code of Conduct is relevant in this investigation as it is alleged that Senator Ó Domhnaill had failed to comply with or abide by certain of its principles. In particular, paragraphs 8.1 and 8.2 provide:
“8.1 Councillors must show all reasonable care for local authority property, resources and funds and not use them, or permit their use, for unauthorised or non-official purposes. They must observe in full and at all times the rules governing the making of claims and of payments of any kind. This includes representational payment, annual allowance, cathaoirleach's or other allowance, conference attendance or other travel.
8.2 The Act permits the authorisation of conference attendance where the council is satisfied such is justified by reference to relevance to the authority and local community, the cost and the benefits likely to accrue. It is the personal responsibility of each individual to ensure his or her proper attendance for the duration and to report back to the council in accordance with the Act.”
Written submissions
4.39 Senator Ó Domhnaill’s legal representatives in their written submission on his behalf cited the Commission’s report into its investigation of alleged contraventions of the Ethics in Public Office Acts 1995 and 2001 and Part 15 of the Local Government Act 2001 by former Councillor Dessie Larkin, Donegal County Council and the Border, Midland and Western Regional Assembly (December 2014). In particular, they cite paragraph 5.3 of the report:
In relation to alleged contraventions 4 to 6, whilst the Code of Conduct for Councillors and Section 142(5)(f) of the Local Government Act require a councillor attending a conference to submit a report to the local authority, Donegal County Council in a letter dated 9 August 2013 informed the Inquiry Officer that it was not “a compulsory practice” of the Council at that time to enforce the requirement and Councillor Larkin had not submitted reports in respect of the conferences. The letter stated that revised arrangements were introduced in March 2010 following the raising of the matter by the Local Government Auditor during the 2008 audit. The Commission concludes that in any given case, it is a matter in the first instance for the Council to assess whether there was proper attendance for the duration of a conference by a councillor as required by paragraph 8.2 of the Code and to enforce compliance with the obligation to report back to the Council in accordance with the Act. Against this background, the Commission is of the opinion that it would be inequitable to adjudicate on Councillor Larkin in relation to his partial attendance at a conference when the regime for assessing a councillor’s attendance and reporting thereon was not operated by the Council until 2010. In these circumstances, the alleged contraventions 4 to 6 are not established against Councillor Larkin.
4.40 The submission states, inter alia:
“Arising out of the Commission’s decision and jurisprudence in the Larkin case, Senator Ó Domhnaill was free to temporarily absent himself from the Dundalk Conference in order to attend a meeting of the Donegal Sports Partnership on behalf of Údarás na Gaeltachta if he believed that that choice would be more beneficial to his constituents and that is the choice he made.”
4.41 The submission further states, inter alia:
“This is not a case of a double expense claim, but rather two distinct claims to two different public bodies arising out of different journeys on different dates and pursuant to the Commission’s decision in the Larkin case, the Senator was fully-entitled to make the journey from an Fál Carrach/Gort a’ Choirce to Letterkenny and back again on 10 March.”
4.42 The submission further states, inter alia, in regard to the Senator’s claims regarding his attendance at the IPA Training Seminar in Carrickmacross, Co Monaghan from 26 to 27 April 2006 and his attendance at a Donegal Sports Partnership meeting in Letterkenny on 27 April 2006:
“This alleged contravention arises out of an honest mistake contained on the claim form submitted to the County Council”