Annual Report 2013 Standards in Public Office Commission (SIPOC)

Chapter 2 - Ethics

Table of Contents

Complaints

After an exceptional year in 2012, the number of complaints received by the Standards Commission in 2013 under the Ethics Acts fell to the pattern of previous years. A total of 29 complaints were received, of which 16 were valid. This was down from 427 in 2012 (of which 334 were valid). Of the 427 complaints, 388 had been referred for investigation to the Commission by the Committee on Members’ Interests of Dáil Éireann, concerning Deputy Michael Lowry. The Standards Commission found that one of the complaints received in 2013 (relating to Councillor Patrick Doherty, Donegal County Council) provided a basis on which to initiate an investigation.

Councillor Oisín Quinn Investigation

The Standards Commission reported in its Annual Reports for 2011 and 2012 on a complaint received from Mr Michael Smith and Councillor Cieran Perry, about Councillor Oisín Quinn, Dublin City Council. The complaint centred on alleged contraventions of Part 15 of the Local Government Act 2001 in relation to Councillor Quinn’s participation in motions and amendments before meetings of the council regarding the draft Dublin City Development Plan. The Commission found that Councillor Quinn had contravened the provisions of section 177(1) on four occasions. The report of the investigation, including the transcript of the investigation hearing, is available on the website of the Standards Commission - www.sipo.gov.ie.

The contraventions found by the Standards Commission concerned Councillor Quinn’s participation in motions and amendments at council meetings held to discuss the draft Dublin City Development Plan. The Standards Commission found that Councillor Quinn and his brothers and sisters (who in terms of the Act are ‘connected persons’) had a pecuniary or other beneficial interest in matters before those meetings relating to restrictions on height and related issues by virtue of their interest in a property at 84-93 Lower Mount Street.

Section 177(1) of the Local Government Act 2001 imposes an obligation on a member of a local authority that where a resolution, motion, question or other matter is proposed or otherwise arises, then such member of the local authority present at the meeting where he or she has actual knowledge that he or she or a connected person has a pecuniary or other beneficial interest in or which is material to the matter: (i) to disclose the nature of his or her interest, or the fact of a connected person’s interest at the meeting, and before discussion or consideration of the matter commences, and (ii) to withdraw from the meeting for so long as the matter is being discussed or considered, and, accordingly, he or she must take no part in the discussion or consideration of the matter and shall refrain from voting in relation to it.

At particular issue in this case was whether or not Councillor Quinn and his brothers and sisters had a pecuniary or other beneficial interest in the matters before the council meetings. Section 176(3)(a) of the Local Government Act 2001 provides:

“A person shall not be regarded as having a beneficial interest which has to be disclosed under this Part... because of an interest which is so remote or insignificant that it cannot be reasonably regarded as likely to influence a person in considering or discussing, or in voting on, any question with respect to that matter or in performing any function in relation to that matter...”

Councillor Quinn had sought and received advice from council officials who considered that the interest concerned was ‘remote’ and therefore not a pecuniary or other beneficial interest and that no obligations arose. The Standards Commission found that the test to be applied is not whether an interest is remote, but whether the interest is so remote or insignificant that it could not be reasonably be regarded as likely to influence Councillor Quinn in considering or discussing or voting on any question or in performing any function in relation to the matter. In this case, it found that the interest was not so remote or insignificant and that Councillor Quinn had contravened the provisions of section 177(1) on four occasions. The Commission was satisfied that the contraventions were committed inadvertently; that they were, in all the circumstances, minor in nature; that they were not continuing contraventions and that Councillor Quinn acted in good faith in relation to each of the contraventions.

The Standards Commission furnished its report on 14 February 2012 to the then Lord Mayor and the then City Manager in accordance with the provisions of section 180(3)(a)(iii) of the Local Government Act 2001. Where such a report is furnished to a local authority, the legislation requires that it be considered by the elected council, which shall decide on such action to be taken as may be considered appropriate in all the circumstances.

Dublin City Council and Councillor Quinn initiated judicial review proceedings in June 2012 against the Commission. The case was heard over six days in the High Court in December 2013 before Mr Justice Hedigan who delivered his judgment on 29 January 2014. He found that the City Council had no locus standi in the proceedings. On the substantive issues in the matter, he found in favour of the Commission, noting:

In determining what might or might not be reasonably regarded as an interest too remote or insignificant, it is hard to imagine a body more qualified than the Commission. It is an ideal composition of experience, both legal, popular and political. It is likely to be a very rare case where this court in judicial review would find its conclusions irrational or unreasonable. I do not think I even need investigate these two concepts because I am in agreement with the determination reached by the Commission here.

Mr Justice Hedigan subsequently awarded costs to the Standards Commission and refused a stay on the costs order, other than a 21 day stay pending an appeal. Dublin City Council later informed the Commission that neither it nor Councillor Quinn intended to appeal the judgment. At the time of writing, the Standards Commission had been informed that its investigation report was due to be considered by the elected members of Dublin City Council on 23 June 2014.

The Standards Commission welcomes the decision of the court and in particular the strong terms in which it upheld the Commission’s role and decision in the investigation. The substantial liability to costs arising from these proceedings is regretted.

The difficulty which arose for Councillor Quinn in determining whether he had interests to disclose in this instance was exacerbated by the absence of clear statutory guidelines as to the obligations for councillors under Part 15 of the Local Government Act 2001 and for the provision of statutory advice to councillors who may be confused as to their obligations. The Standards Commission had recommended in its Annual Report for 2008 that statutory provision for guidelines and advice be made in respect of Councillors’ ethical obligations along the lines for other categories of politicians and public servants in the Ethics in Public Office Acts 1995 and 2001. While these have not been put in place to date, the Commission expects that the comprehensive ethics framework which the Government intends to introduce may remedy this deficiency.

Michael Lowry TD Investigation

In November 2012, Mr Kieran Coughlan, Clerk of Dáil Éireann, referred 388 complaints to the Committee on Members’ Interests of Dáil Éireann concerning alleged contraventions by Deputy Michael Lowry of the provisions of the Ethics Acts regarding his ownership of lands at Wigan, United Kingdom. The Committee, by resolution, determined that the complaints should be investigated by the Standards Commission. The Committee decided that the Commission was better placed to conduct an investigation into the complaints by virtue of the fact that the legislation provides for an Inquiry Officer to assist the Commission in its work by, inter alia, carrying out a preliminary inquiry into the complaints. The Ethics Acts do not make any provision for a Committee to appoint an Inquiry Officer.

Of the 388 complaints, it was found that 70 were invalid within the meaning of the Ethics Acts as the identity of the complainant in each case was not known to the Standards Commission because no address or an insufficient address was provided.

The Standards Commission appointed an Inquiry Officer to conduct a preliminary inquiry into the matters complained of. Having considered the report of the preliminary inquiry conducted by the Inquiry Officer, the Commission decided to discontinue its investigation into the complaints on the basis that there was not sufficient evidence to sustain them. In order for an interest in land to be registrable under the Ethics in Public Office Acts 1995 and 2001, its value must exceed €13,000. The Commission noted estimates of the land’s value obtained by the Inquiry Officer from two independent professional valuers, which taken together did not confirm that Deputy Lowry’s interest in the lands in question exceeded the disclosure threshold. The Commission wrote to the Committee on 25 September 2013 enclosing a record of its decision to discontinue the investigation. The record of decision was published on the Commission’s website.

Senator Brian Ó Domhnaill Investigation

The County Manager and Mayor of Donegal County Council complained in May 2012 to the Standards Commission about a number of expenses claims made by Senator Brian Ó Domhnaill in his former capacity as a member of the Council and of Údarás na Gaeltachta. They also complained that he had not properly attended the whole of some conferences which he was delegated to attend, and in respect of which attendance he had been reimbursed expenses. In their complaint, the Manager and Mayor alleged that he may have done specified acts within the meaning of the Ethics Acts in this regard.

The Standards Commission appointed an Inquiry Officer to conduct a preliminary enquiry into the complaint. Following consideration of the Inquiry Officer’s report, the Commission decided that it was appropriate to carry out an investigation under section 23 of the Ethics Act to determine whether Senator Brian Ó Domhnaill had contravened provisions of Part 15 of the Local Government Act or had done a specified act or acts.

It informed Senator Ó Domhnaill that it would sit for the purposes of the investigation on 11 March 2013. Following exchanges of correspondence between the Commission, Senator Ó Domhnaill and his legal representatives, the investigation was deferred until 8 April 2013 and the Commission was notified that Senator Ó Domhnaill had engaged new legal representatives. They indicated that they would be conducting the matter through the Irish language and sought assurances that the hearing would be conducted by an officer competent in Irish. The Commission put in place arrangements to facilitate the Senator’s request through the use of translators and indicated that it had further deferred the hearing. Further exchanges of correspondence took place regarding the arrangements for the hearing, including the provision of translated documents to Senator Ó Domhnaill’s legal representatives. They objected to the holding of the hearing on a number of grounds, including that the members of the Commission would not be in a position to hear the matter without the use of translators and that the complaints were received from anonymous complainants. They also stated that the Commission’s legal representatives were under an obligation to deal with the matter through Irish.

The Commission’s legal representatives replied saying that it was facilitating their client by providing translation services and also stated that the complaint under consideration was that made by the County Manager and Mayor of Donegal County Council and was not anonymous. Finally, they stated that they were not required by law to correspond in Irish as they were not a public body, but that they had in any event provided correspondence in both Irish and English.

Senator Ó Domhnaill subsequently made an application for judicial review of the Commission’s arrangements for the investigation hearing on the grounds that he was entitled to have the hearing held by Commissioners who were in a position to understand his evidence without the aid of translation. He further objected to the examination of the complaint in that the identity of the complainants was not disclosed in accordance with section 8 of the Standards in Public Office Act 2001.

The case was heard in the High Court in November 2013 before Mr Justice Hogan who delivered his judgment on 13 January 2014. The court found that while the initial complaints to Donegal County Council were anonymous, those before the Commission were not and the Commission had not acted contrary to the provisions of section 8 of the Standards in Public Office Act 2001 in this regard. The court rejected the argument that all the members of the Commission must be bilingual before being able to adjudicate in the matter. The court found that there was no need to adjudicate on the question of whether the Commission’s legal representatives were obliged to communicate in Irish in this matter, as it had in fact done so once Senator Ó Domhnaill indicated in March 2013 that he wished to correspond in that language.

Senator Ó Domhnaill’s legal representatives subsequently informed the Commission that he intended to appeal the decision to the Supreme Court.

Complaints about Minister Alan Shatter

The Standards Commission received three complaints, one of which was from Mr Mick Wallace TD, concerning statements made by Mr Alan Shatter TD, then Minister for Justice and Equality on RTE’s Prime Time on 16 June 2013 about an incident involving Deputy Wallace and members of An Garda Síochána. The complaints alleged that, in making the statements, Minister Shatter had improperly disclosed personal information about Deputy Wallace and accordingly had done a ‘specified act’. The Commission also received a complaint from Deputy Luke ‘Ming’ Flanagan about an alleged ‘specified act’ by Minister Alan Shatter regarding the Minister’s release of confidential information about him. A ‘specified act’ as referred to in section 4 of the Standards in Public Office Act 2001 (the 2001 Act) is:

“... an act or ... an omission after the commencement of section 2 that is, or the circumstances of which are, such as to be inconsistent with the proper performance by the specified person of the functions of the office or position by reference to which he or she is such a person or with the maintenance of confidence in such performance by the general public, and the matter is one of significant public importance,...”

Section 4(6)(b) of the 2001 Act provides:

“Without prejudice to the generality of the expression “significant public importance” in subsection (1), a matter shall, if the Commission consider it appropriate to do so having regard to all the circumstances, be deemed by it, for the purposes of that subsection, to be of significant public importance if it relates to a benefit alleged to have been received by a specified person or a person who, in relation to a specified person, is a connected person and, in the opinion of the Commission, the value of the benefit was, is or might have been or be expected to be or to become not less than £10,000.” (i.e. €12,697)

The Commission appointed an Inquiry Officer to conduct a preliminary inquiry into the matters complained of. The Inquiry Officer gathered relevant evidence and statements and, having provided these to Minister Shatter, obtained a statement from him. He then presented his report of the preliminary inquiry to the Commission for its consideration.

The Commission considered the complaints in light of the preliminary inquiry report and the relevant statutory provisions. It decided that the act by the Minister which was the subject of the complaints by Deputy Wallace and two other complainants (i.e. the statements by the Minister on the Prime Time programme concerning Deputy Wallace) was not a “specified act” because it considered that the matter was not one of “significant public importance” within the meaning of section 4 of the 2001 Act. In those circumstances, it was not open to the Commission to carry out an investigation of the complaints, having regard to the provisions of section 23 of the Ethics in Public Office Act 1995 (“the 1995 Act”) (as amended by section 7 of the 2001 Act).

Section 23(1A)(b) of the 1995 Act provides:

“The Commission shall not carry out an investigation under subsection (1) into a complaint under subsection (1) of section 4 of the Act of 2001 in relation to a matter referred to in paragraph (a) of that subsection unless... the Commission becomes of opinion, after consideration by it of any report of an inquiry officer in relation to the matter and any statements or documents accompanying the report, that there is sufficient evidence to establish a prima facie case in relation to the alleged specified act concerned and that, if it was in fact done, it is an act falling within the said paragraph (a).

The Commission decided that the matter which was the subject of complaint by Deputy Flanagan about the alleged ‘specified act’ by the Minister was not one of significant public importance. It could not therefore be considered a ‘specified act’ and accordingly, under the provisions of section 23(1A)(b) of the 1995 Act, the Commission decided not to carry out an investigation into the matters complained of.

The Commission informed the complainants and the Minister of its decision.

Councillor Pádraig Doherty Investigation

The Commission received a complaint from Councillor Frank McBrearty, then Mayor of Donegal County Council and Mr Seamus Neely, County Manager, concerning Councillor Pádraig Doherty. The complaint centred on alleged contraventions of Part 15 of the Local Government Act 2001 in relation to the claiming of expenses from both Donegal County Council and Údarás na Gaeltachta for attendance at conferences in Dungarvan, Co. Waterford, Dundalk, Co. Louth and at the offices of Údarás na Gaeltachta in Furbo, Co. Galway.

The Standards Commission appointed an Inquiry Officer to conduct a preliminary enquiry into the complaint. Following consideration of the Inquiry Officer’s report, the Commission decided that it was appropriate to carry out an investigation under section 23 of the Ethics Act to determine whether Councillor Doherty had contravened Part 15 of the Local Government Act or had done a ‘specified act’ within the meaning of the Ethics Acts. An investigation hearing was held on 12 May 2014.

The Commission published its investigation report on 17 June 2014. It found that Mr Doherty contravened sections 168 and 169(3) of the Local Government Act 2001, acted in disregard of provisions of the Code of Conduct for Councillors and did a ‘specified act’ within the meaning of the Standards in Public Office Act 2001 by claiming travelling expenses from Údarás na Gaeltachta in respect of his attendance at the Association of County and City Councils’ Annual Conference 2007 at The Park Hotel, Dungarvan, County Waterford on 8, 9 and 10 March 2007 and later also claiming travelling and subsistence expenses in respect of attendance at the same Conference from Donegal County Council.

The Standards Commission also found that Mr Doherty contravened sections 168 and 169(3) of the Local Government Act 2001, acted in disregard of provisions of the Code of Conduct for Councillors and did a ‘specified act’ within the meaning of the Standards in Public Office Act 2001 by claiming travelling expenses from Donegal County Council in respect of his attendance at the Irish Central Border Area Network Conference at the Crowne Plaza Hotel in Dundalk, County Louth on 20 November 2008 and later also claiming travelling and subsistence expenses in respect of attendance at a meeting of Údarás na Gaeltachta in Furbo, County Galway on 21 November 2008.

The Commission found that Mr Doherty was not entitled to make separate claims for his journeys from home to Dundalk and then from home to Furbo and that he should have made a claim to Donegal County Council for his journey from home to Dundalk and then made a claim to Údarás na Gaeltachta for journeys from Dundalk to Furbo and from Furbo to his home.

The Standards Commission also found that Mr Doherty contravened sections 168 and 169(3) of the Local Government Act 2001, acted in disregard of provisions of the Code of Conduct for Councillors and did a ‘specified act’ within the meaning of the Standards in Public Office Act 2001 by claiming an overnight subsistence allowance from Údarás na Gaeltachta in respect of his attendance at meeting of Údarás na Gaeltachta in Furbo, County Galway on 21 November 2008 when he had not availed of accommodation to justify the claim.

The Standards Commission found that each of the contraventions was committed recklessly and was, in all the circumstances, a serious matter. The Commission also found that Mr Doherty did not act in good faith in relation to each of the contraventions.

The Commission has sent its report to Mr Doherty, to Mr Seamus Neely, Chief Executive, Donegal County Council and Councillor John Campbell, Mayor, Donegal County Council (whose predecessors made the complaint to the Standards Commission) and also to the Minister for Public Expenditure and Reform and to the Minister for Environment, Community and Local Government.

In his letter to the Minister for Public Expenditure and Reform, the Commission Chairperson, Mr Daniel O’Keeffe, informed him that the Commission is concerned at the scope for abuse by persons making such claims to more than one public body and has requested that he give consideration to putting in place arrangements across the public service for cooperation by public bodies in ensuring that only the appropriate amounts within the relevant regulations are paid in response to claims by persons to more than one body in respect of the same period.

The Commission also recommends that there be a requirement for expenses claims to be submitted in a timely manner and that claimants be required to preserve some contemporaneous record of the basis of claims submitted.

The investigation report, together with full details of the Standards Commission’s findings and determinations, is available on the Commission’s website - www.sipo.gov.ie

Public Sector Standards Bill

In its Annual Report for 2012, the Standards Commission reported that in the context of its response to the Final Report of the Mahon Tribunal the Government had decided, inter alia, to take the opportunity to undertake a full review of how the existing legislative framework for ethics can be reformed in order to develop a single, comprehensive legislative framework grounded on a clear and comprehensive set of principles. The Commission had first sought such a consolidation of the legislation in its 2009 Annual Report.

The Government announced in its legislative programme for the Spring/Summer Session that the Minister for Public Expenditure and Reform intends to publish a Public Sector Standards Bill during 2014. The Commission welcomes this announcement and looks forward to contributing to the development of the proposed legislation.

Scope of the Ethics Acts

The Standards Commission has reported in each of its Annual Reports since 2004 on the large increase in the scope of the Ethics Acts in terms of the numbers of public bodies in the public service in which the Minister for Finance and latterly the Minister for Public Expenditure and Reform has prescribed designated directorships and designated positions of employment. In its report for 2012, it stated that around 910 public bodies including subsidiaries were within remit.

The most recent regulations were made by the Minister for Public Expenditure and Reform in July 2013. These brought the Director and certain members of staff of the Insolvency Service of Ireland within the scope of the Ethics Acts. In line with practice since 2004, regulations would have been due to be made to come into effect on 1 January 2014. However, no such regulations were made. Since the most recent regulations in 2013, the process of public service rationalisation has led to the dissolution of a number of bodies and the creation of new bodies either newly created or by way of merger of existing bodies. 33 Vocational Education Committees have been replaced by 16 Education and Training Boards. FÁS has been replaced by SOLAS. In addition, bodies such as Irish Water have been set up. However, the disclosure of interests obligations of the Ethics Acts do not apply to their directors or employees. In light of the dissolution of a number of public bodies, there are now around 870 public bodies within the scope of the legislation.

Due to work on the new Public Sector Standards Bill, no new regulations have been made. The Standards Commission notes with concern that a significant number of bodies remain outside the scope of the Ethics Acts. It is understood that at the time of writing new regulations were in preparation. However, the Commission strongly recommends, as it has done on numerous previous occasions, that the regulations be kept as up to date as possible in order that any potential or actual conflicts between personal interests and public functions are disclosed and resolved in the public interest.

Registration of Lobbying

The Standards Commission reported in its 2012 Annual Report on the intention of the Government to publish legislation which will provide for the registration of lobbying and for related matters. The Registration of Lobbying Bill 2014 was published on 20 June 2014.

The purpose of the Registration of Lobbying Bill 2014 is to provide for a register of lobbying to make information available to the public on the identity of those communicating on specific policy, legislative matters or prospective decisions with designated public officials. The Bill defines the communications which constitute lobbying and those that are excluded and sets out who should be regarded as designated public officials. The Bill also allows for delayed publication of information on the Register in certain circumstances.

The Bill provides for the development of a Code of Conduct for lobbyists and a Transparency Code for working groups, task forces and other groups established by a Minister or public service body. The Bill also provides for restrictions and conditions on the taking up of certain employments by certain designated officials for a specified period of time where a possible conflict of interest arises.

The Bill provides that the Commission will establish and maintain a register of lobbyists. The Commission will be responsible for monitoring compliance and providing guidance and direction. The focus in the initial period of the operation of the Bill will be on education, guidance and information. Arrangements are being put in place for an Advisory Board and an IT Project Team to assist the Commission in the implementation of the Bill’s provisions.

The Commission will assist the Minister for Public Expenditure and Reform in reviewing the operation of the legislation and will report annually to the Houses of the Oireachtas on the operation of the legislation.

The Bill provides the Commission with powers to investigate and pursue contraventions of the legislation. It is intended, however, that the enforcement provisions will not come into operation until a review of the implementation of the Bill by the Minister has been carried out. The Bill provides that the first review of the operation of the legislation will take place one year after the commencement of the proposed legislation.