Annual Report 2005

Codes of Conduct

Section 10 of the 2001 Act provides for the introduction of codes of conduct for the following categories, following consultation with the Standards Commission:

• members of both Houses of the Oireachtas;
• office holders;
• public servants.

Codes of conduct for members of both Houses of the Oireachtas, as drawn up by the Committees on members' Interests of Dáil Éireann and Seanad Éireann, were published by the Standards Commission in 2002.

The Code of Conduct for Office Holders, as drawn up by the Government was published by the Standards Commission on 3 July 2003.

The Civil Service Code of Standards and Behaviour, as drawn up by the Minister for Finance, was issued by way of circular 26/04 on 9 September 2004 and was subsequently published by the Standards Commission.

In its 2003 and 2004 Annual Reports, the Standards Commission referred to its consultations with the Department of Finance regarding codes of conduct for public bodies in the wider public service. The Standards Commission is not aware of any significant progress in 2005 in regard to the development of such a code. However, in discussions with the Department of Finance, it has been advised that separate codes of conduct for the commercial and non-commercial sectors are under consideration. The Standards Commission is also aware of concerns at the proliferation of different types of codes, statutory and administrative, which are emerging in this area. State bodies are subject to the Code of Practice for the Governance of State Bodies, published by the Minister for Finance in October 2001, which includes a code of ethics. In addition to this, some statutory bodies have been established under legislation which provides for codes of conduct specific to those bodies. The danger of confusion as to the relevant provisions of such competing codes, and even the possibility of conflict between the codes, is evident.

The Standards Commission notes that Section 10 of the 2001 Act provides that a code of conduct drawn up under the Act shall indicate the standards of conduct and integrity for the persons to whom it relates in the performance of their functions and in relation to any matter connected with or affecting or likely to affect such performance and in relation to such other matters (if any) as may be specified in the code.

The provisions of such a code need not, therefore, be too specifically tailored to the circumstances applying in a particular public body but should set out the general principles of conduct and integrity which apply to public bodies generally. It may then be appropriate that those general principles could be elaborated on in the specific circumstances applying in a public body in a subordinate document. The Standards Commission considers that, while it may be appropriate to introduce separate codes in the commercial and non-commercial state sectors, it is essential that such codes are drawn up and published at the earliest date.

Codes of Conduct for Local Authorities

In its Annual Report for 2004, the Standards Commission set out the position in regard to two codes of conduct, one for local authority employees and the other for councillors, which were issued in June 2004 by the Minister for the Environment, Heritage and Local Government. The Local Government Act 2001 provides that the Minister is required to consult with the Standards Commission in relation to the drafting of such codes. The Standards Commission was consulted on the codes in December 2003, and provided its observation on the contents of the codes in February 2004.

The Standards Commission suggested the possibility of provision being made whereby protection against reprisal would be guaranteed in any circumstances where a bona fide report or complaint was made by an employee or a councillor who believed that s/he was being required to act in a manner which:

• was illegal, improper, or unethical;
• was in breach of constitutional convention or a professional code;
• may involve possible maladministration; or
• was otherwise inconsistent with the relevant code.

The Standards Commission informed the Department that section 5 of the Standards in Public Office Act 2001, which provides immunity for complainants under that legislation, might serve as a model in this respect.

The Standards Commission had other reservations about the draft code for employees where it dealt with "Attendance and Outside Employment". In particular, the Standards Commission indicated that it would not be satisfied with the position whereby, if an outside business, occupation or activity was being carried on contemporaneously with the local authority employment, and could reasonably be regarded as weakening public confidence, the matter would be referred to a supervisor for a judgement on its propriety. The Standards Commission felt that there should be a general prohibition on any such business, occupation or activity which could weaken public confidence while the person was in the employment of a local authority, with the proviso that the matter should be referred to a supervisor in the event of uncertainty.

The Standards Commission also considered that it would be appropriate to include a provision in the code which would bring some element of control to the situation whereby local authority employees could leave their employment and take up consultancies or other employment in the private sector to which they could bring access/information/contacts gained in the course of their local authority employment. In such circumstances, it was felt that the imposition of a moratorium for a specified period would not be unreasonable.

In the 2004 Annual Report, the Standards Commission regretted that the Department of Environment, Heritage and Local Government had not taken on board the observations provided in 2004. In December 2005, however, the Department consulted the Standards Commission about draft amendments to Section 10 of the code of conduct for local authority employees, which provide that employees who intend to accept, within twelve months of resignation or retirement, employment or consultancy engagements outside the local authority sector, whose terms are such that the question of a conflict of interest could arise, must consult with and obtain the consent of the appropriate authority.

The Standards Commission indicated to the Department that it welcomes the proposed amendments as being in line with one of its observations in 2004. The proposed amendments bring the Local Authority Code more into line with the Civil Service Code of Standards and Behaviour. The Standards Commission indicated that it had a reservation about the balance of the proposed Outside Appointments Board which was to be composed of the Secretary General of the Department and four other members, at least two of which would not be serving or former local authority employees. It considered that the balance ought to be weighted in favour of persons with non-public service backgrounds as is the case with the Civil Service Outside Appointments Board. It also considered that any provisions should be enforceable and that legislation should be introduced to ensure this, if necessary.

It also expressed its disappointment that its other observations on the original code, which related to the protection of employees who may complain about being required to act in an improper manner, and the fact that the code lacks a general prohibition on outside business, occupations or activities while in the employment of a local authority, were not addressed. The Standards Commission welcomes the Minister's comments in Dáil Éireann on 8 March 2006 made in response to parliamentary questions about protection for local authority employees who make complaints. The Minister indicated that he is open to the development of suitable provisions within the local government legislative code, subject to detailed consideration of the specific issues arising in a local government context and to Government approval. He said that he would be disposed to bring such provisions forward at the next appropriate legislative opportunity.

In regard to local authority employees engaging in outside business, occupations or activities, the Standards Commission considered that the wording of this provision of the Code should be strengthened to reflect more accurately the statutory provisions and the fact that a breach of the provision could be considered to be a 'specified act' within the meaning of the 2001 Act, i.e., an act or an omission 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. The Standards Commission indicated its willingness to discuss these matters further with the Department.

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