Dáil bye-elections 2009

C. Keeping a record of donations received in relation to the election

1.11 It is the candidate who is required to comply with the requirements of the Act regarding the disclosure of donations. It is important, therefore, that candidate keeps a record of donations received in relation to the election for the purposes of furnishing a Donation Statement to the Standards Commission after the election (see section G).

The candidate is also responsible for ensuring that donations accepted by him/her are not prohibited under the Act (see section E). The onus is on the candidate to satisfy himself/herself that a donation is not prohibited under the Act. This is particularly important where donations are received on-line. Where a candidate is accepting donations through a website he/she must ensure that he/she can properly identify the source of the donation and that he/she is not prohibited from accepting a donation from the donor. It is also important for disclosure purposes and for the purposes of adhering to the maximum acceptance limit that there is a system in place which will aggregate donations received on-line from the same donor (whether by credit card, laser card etc).

What is a Donation

1.12 A donation is defined in the Act as meaning any contribution given for political purposes by any person, whether or not the person is a member of a political party.

There are a number of important words in the definition of a donation given above.

(a) Donation

A donation includes:

1. a donation of money;
2. a donation of property or goods;
3. the free use of property or goods;
4. a free supply of services;
5. the difference between the commercial price and the (lower) price charged for property, goods or services; (this can include a loan provided to a candidate by a financial institution at terms and conditions which are more favourable than that provided by the financial institution to other individuals. Details of the position of the Standards Commission with regard to the issuing and repayment of loans can be found at 1.21 below)
6. a donation received by way of a contribution made to the net profit from a fund-raising event organised for the benefit of a candidate. (This is explained in greater detail in Appendix 2.)

(b) Political purposes

The contribution must be given for political purposes. The definition of political purposes is given in Appendix 1.

(c) Person

This can be:

1. an individual;
2. a body corporate (e.g., a public or private company) and any subsidiary thereof. In this regard section 155 of the Companies Act should be applied when determining whether a company is a subsidiary of another company. Where donations are received from associated companies the candidate should enquire from the donors whether, under section 155 of the Companies Act, one or other of the companies is a subsidiary of the other;
3. an unincorporated body of persons, e.g. a political party, a partnership, a residents association, a lobby group.

1.13 Donations with a value, or donations from the same person with an aggregate value of more than €634.87 are required to be disclosed. Where the same person makes more than one donation to a candidate in relation to the election, the values of the donations must be aggregated and treated as a single donation for disclosure purposes.

1.14 If more than one member of the same family, or other group, make donations to the same candidate, including where donations of money are made from a joint account in a financial institution, it must be clear that these are separate donations from each of the individuals involved. Otherwise, the values of the donations must be aggregated and treated as a single donation for disclosure purposes and for the purpose of observing the maximum limit applying to the acceptance of donations (see paragraphs 1.28 to 1.31). Similarly, if a company and any of its directors makes a donation to the same candidate it must be clear that these are separate donations. In such circumstances the Standards Commission may look for evidence that the donations are from separate legal entities. In each case, the candidate must make whatever enquiries are necessary in order to be satisfied as to the position with regard to the donation.

1.15 A donation to a candidate also includes money given to a candidate by his/her political party.

1.16 A donation passed on to a party by a candidate is deemed to be a donation made to the party and not to the candidate. The candidate must, however, ensure that he/she receives a written acknowledgement of receipt of the donation from the party.

1.17 Where expenses are incurred on a candidate's behalf by an individual or body other than a political party as defined in the Act and the expenses are borne by the individual/body, the expenses may be regarded as a donation to the candidate. This would include expenses incurred by a local election or European election candidate (see paragraphs 1.37 and 1.38 below) or a third party (see Chapter 4).

1.18 A donation made to a candidate through an intermediary is deemed to be a donation made to the candidate.

What is not a donation

1.19 Items not regarded as donations to a candidate include:

(i) free post service provided to candidates by an Post

(ii) any payment, service or facility provided to the candidate out of public funds or moneys provided by an institution of the European Communities or other intergovernmental organisation to which the State is a party, pursuant to specified legislation, by virtue of the candidate being:

• a representative in the European Parliament;
• a member of the Seanad;
• the holder of a qualifying office or position;
• the holder of an elective or other public office; or
• a member of, delegate to or representative in a body established by or under an agreement or arrangement to which the State is a party;

It is important to note that this provision only applies where the candidate by virtue of his/her position or office, is entitled to use the services/facilities provided. For instance, if a candidate who is not a Member of the Houses of the Oireachtas is provided with the free use of Oireachtas facilities (e.g. envelopes, telephones), it is regarded as a donation from the Member allowing the candidate to avail of the facilities.

(iii) a free service provided by an individual, including use of the individual's motor vehicle, private telephone, etc., where the service provided is not part of the individual's work or business;

It is important to note that the reference in this particular provision of the Act (section 22(b)(iii)(I) is specific to an individual and to the use of an individual's motor vehicle (singular). If more than one vehicle is provided by an individual, the additional vehicles may be regarded as donations and as election expenses. If a vehicle which is in the ownership of a company, partnership, business etc., is provided to a candidate, it is not regarded as a free service provided by an individual. In such circumstances the use of the vehicle is regarded as a donation and as an election expense. The commercial cost of hiring a similar vehicle for a similar period must be ascertained for the purposes of disclosing its value as a donation and for the purposes of disclosing its use during the election period, as an election expense.

(iv) a service provided at an election by an employee of a political party, including use of the individual's motor vehicle, where the employee's remuneration is paid out of party resources or out of public funds and where the employee is not in receipt of any reward or benefit in kind other than his or her normal remuneration (including recoupment of expenses) for that service;

(v) normal media coverage and the transmission on radio or television of a broadcast on behalf of the candidate; [This does not cover any production, or other, costs associated with such a broadcast.]

(vi) expenses incurred or payments made by a political party on behalf of the candidate;

(vii) the services of an accountant, or other person, who is engaged for the specific purpose of assisting compliance with the requirements of the legislation;

(viii) the services of personation officers on polling day;

Expenses incurred by an organisation or body (other than a registered political party)

1.20 As stated in paragraph 1.19(vi) above expenses incurred by a political party on behalf of a candidate are not regarded as a donation to the candidate. A political party is defined in the Act as a party registered in the Register of Political Parties (in accordance with section 25 of the Electoral Act 1992) as a party organised to contest a Dáil or European election or both such elections. Only expenses incurred by a registered political party are not regarded as a donation to a candidate. If an organisation is not registered in the Register of Political Parties as a party organised to contest a Dáil or European election it is not regarded as a political party for the purposes of the Act. It that regard, therefore, expenses incurred by "third parties" (see Chapter 4) on a candidate are regarded as donations to the candidate and are subject to disclosure limits and to the rules regarding prohibited donations (see paras 1.25 to 1.34 below).

Loans to candidates

1.21 Where a loan is provided to a candidate by a financial institution and the normal rules attaching to such loans apply, the loan is not regarded as a donation to the candidate. However, where a loan is provided to a candidate by a financial institution in circumstances where either the interest charged is less than the lowest rate available from the financial institution or the loan is not repaid in accordance with the terms and conditions under which the loan was issued or is only partially repaid, the benefit to the candidate may be regarded as a donation and may, therefore, be subject to the disclosure and maximum limits applying to the acceptance of donations.

Where an individual or body, who or which is not a financial institution, gives a loan to a candidate, it must be evident that the loan offered is a bona fide loan. In that regard the following would apply:

1. As with a loan from a financial institution, the terms and conditions applying to the loan and its repayment must be stated clearly in writing.
2. Interest is chargeable on the loan at a rate (whether fixed or variable) which reflects the interest charged by financial institutions on loans of a similar amount and duration. Where the interest charged is less than the lowest rate available from a financial institution, the benefit accruing from the difference in rates is regarded as a donation to the candidate.
3. The Standards Commission may require sight of the terms and conditions, including the interest charge, applying to the loan and may require confirmation that the loan has been repaid in accordance with these terms and conditions. If the loan is not repaid in accordance with the terms and conditions, or is only partly repaid, the benefit of such non-repayment may be regarded as a donation to the candidate.

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