Annual Report 2007

Complaints against local authority members

Investigation of a Complaint against two Killarney Town Councillors

In May 2006, the Standards Commission received a complaint from the Town Manager of Killarney Town Council concerning alleged contraventions of Part 15 of the Local Government Act 2001 by Councillors Patrick O'Donoghue and Sheila Casey. The alleged contraventions related to a motion to rezone land at the Gleneagle Land, Killarney, which was debated and voted on by Killarney Town Council on 6 March 2006. Following consideration of a report by an Inquiry Officer, the Standards Commission decided that an investigation was warranted.

An investigation hearing was held in the offices of the Standards Commission on 26 March 2007. A statement of contraventions set out alleged contraventions of Part 15 of the Local Government Act 2001 and alleged "specified acts" by Councillors O'Donoghue and Casey. The Standards Commission heard legal submissions on its own behalf and on behalf of Councillors O'Donoghue and Casey in relation to the Statement of Alleged Contraventions supported by the Statement of Agreed Facts. The Standards Commission heard an opening statement from its own Counsel, followed by sworn testimony from Councillors O'Donoghue and Casey and closing submissions from its own counsel and counsel for Councillors O'Donoghue and Casey.

Under the Ethics Act, the Standards Commission must prepare a report setting out its findings and determinations as to whether there has been a contravention of the Ethics Acts or, as in this case, Part 15 of the Local Government Act 2001. Where it finds that a contravention did occur, it must determine whether the contravention is continuing, whether the contravention was committed inadvertently, recklessly or intentionally, whether the contravention was serious or minor, and whether the person acted in good faith and in the belief that he or she was complying with the Standards Commission's guidelines or advice.

The Standards Commission published its report of the investigation in May 2007. The report set out its findings and determinations in respect of each alleged contravention. It found that Councillor O'Donoghue had contravened the provisions of Part 15 of the Local Government Act 2001 and had acted in disregard of the Code of Conduct for Councillors. It found that two of the contraventions were inadvertent and minor in nature, while one was done intentionally and was a serious matter and one was done negligently and was also a serious matter. The Standards Commission found that the contraventions were not continuing ones. The Standards Commission also found that Councillor O'Donoghue did not act in good faith in relation to the matter.

The Standards Commission found that Councillor O'Donoghue did not do a "specified act" as the matter the subject of the alleged contravention was not a matter of significant public importance as the lands in question could not be rezoned without the approval of the Council officials, which approval was unlikely to be forthcoming in the circumstances.

In relation to Councillor Sheila Casey, the Standards Commission was not satisfied that it had been established that she had contravened the provisions of Part 15 of the Local Government Act 2001. To establish that Councillor Sheila Casey was in breach of the provisions of Section 177 of the Local Government Act 2001, the Standards Commission would have had to be satisfied, on the balance of probabilities, that Councillor Casey had, as an employee of the O'Donoghue family, actual knowledge that she was a person with a pecuniary or other beneficial interest in and/or material to the motion to rezone the lands which were the subject matter of the motion before Killarney Town Council. The Standards Commission was not satisfied, on the balance of probabilities and on the basis of the evidence before it, that it had been established that Councillor Sheila Casey had actual knowledge that she was a person with a pecuniary or other beneficial interest in and/or material to the motion to rezone the lands. It was also not satisfied on the balance of probabilities and on the basis of the evidence before it that Councillor Casey failed to maintain proper standards of integrity, conduct and concern for the public interest and that, as a "specified person", her conduct was inconsistent with the proper performance by her of her functions as a councillor.

In the conclusion of its report of the investigation, the Standards Commission stated that by reason of its findings regarding Councillor Sheila Casey, it considered that council officials should remind councillors of the provisions of the Ethical Framework for the Local Government Service and the Code of Conduct for Councillors at the beginning of each council meeting where planning matters are on the agenda. It noted that the onus to comply with these provisions remains on the individual member of the council.

The Standards Commission sent its report to the two councillors concerned, to the local authority and also to the Minister for Finance and to the Minister for the Environment, Heritage and Local Government.

The Ethics Acts provide that where the Standards Commission is of the opinion that a person the subject of an investigation may have committed an offence relating to the performance of his or her functions, it shall prepare a report in writing in relation to the matter and furnish it to the Director of Public Prosecutions. Having considered the matter at the conclusion of its investigation, the Standards Commission was of the opinion that offences under the Local Government Act may have been committed by Councillor O'Donoghue. It therefore referred a report on the matter to the Director of Public Prosecutions. At the time of writing this report, the Director had not notified the Standards Commission of any decision made in relation to the taking of proceedings for an offence in respect of the above matters.

The report of the investigation, including the transcript of the investigation hearing, is available on the website of the Standards Commission.

Complaints against current and former Wicklow County Councillors

The Standards Commission received two letters of complaint from the County Manager and the Cathaoirleach of Wicklow County Council concerning complaints made to the Council's Ethics Registrar about alleged contraventions of Part 15 of the Local Government Act 2001 by serving and former Councillors.

A. Former Councillor (now Senator) Deirdre de Burca had complained about:

the alleged failure by Councillor Edward Timmins and Deputy (former Councillor) Billy Timmins to disclose an interest in lands in the Timmins family-owned site at Bawnogue (Baltinglass, Co. Wicklow);
Councillor Vincent Blake's participation in a land disposal issue at a meeting of Wicklow County Council on 8 January 2007, regarding a disposal notice of the Council's interest and equity in 375 sq. m. of land to a number of persons including Deputy Billy Timmins. The complaint referred to Councillor Blake's alleged failure to disclose the interest of his employment as Parliamentary Assistant to Deputy Timmins and to his failure to excuse himself from the meeting while the vote was taken.

B. Councillor Edward Timmins and Councillor Vincent Blake complained about Senator (former Councillor) Deirdre de Burca. These complaints concerned:

a failure to make declarations for the periods January to June 2004 and 2005/2006;
a "factually incorrect statement" made by then Councillor de Burca in correspondence with the County Secretary and
her role in a libel action re East Coast FM, concerning which Councillor Blake cited claims in a press release issued by her and claimed this led to a libel case settlement by East Coast FM.

C. Councillor Blake also complained about:

Councillor Tommy Cullen's failure to make declarations for the period 2005/2006 and
a "factually incorrect statement" made by Councillor Cullen in correspondence with the County Secretary.

In the course of the Standards Commission's consideration of the matter, both Councillor Edward Timmins and Deputy Billy Timmins supplied letters from their solicitor confirming that they did not acquire any interest in the lands at Bawnogue until after January 2006 and confirming that those lands have been owned by the Timmins family since the 1920s. The solicitor stated that the Timmins' grandfather owned the lands at that time and subsequently the lands were owned by their father and then their mother. The Standards Commission considered that in view of this there was no basis on which to sustain these elements of the complaints.

In considering the complaint against Councillor Blake, the Standards Commission considered that the interest was so remote or insignificant as not to fall within the scope of a beneficial interest as defined by section 176 of the Local Government Act 2001.

In relation to the complaints against Senator de Burca and Councillor Cullen, the Standards Commission noted that the declarations of interests referred to had subsequently been furnished. It also noted that there appeared to be a conflict of evidence as to whether the declarations had previously been furnished, as claimed by Senator de Burca and Councillor Cullen. It further considered that the Council's administration of the receipt of declarations, and its failure to follow up with Councillors who it believed may not have made the required disclosures, did not allow for the conflict of evidence to be resolved. In those circumstances and in view of the fact that the declarations had now been furnished, the Standards Commission decided that there was no basis on which to initiate an investigation into these complaints. The Standards Commission also decided that there was no basis on which to initiate an investigation under the Ethics Acts into the complaints concerning the alleged factually incorrect statements concerning Senator de Burca's actions in regard to East Coast FM.

The Standards Commission informed the County Manager of its decisions; each of the complainants and persons complained of were subsequently informed of the outcome by the County Manager. The Standards Commission informed the County Manager of its view that the complaints should properly have been resolved within the local authority without the necessity of recourse to the Standards Commission. It stated that the conflict of evidence as to whether a declaration had been made and, if so, when it was received, could have been avoided had procedures been applied where all declarations furnished are date stamped on receipt and acknowledged to the person. In addition, the failure by a Councillor to furnish a declaration should be pursued with that Councillor by the Ethics Registrar, who is given certain duties under section 174 of the Local Government Act 2001. The Standards Commission recommended that the Council review its administration of Part 15 and in particular the administration of the duties of Ethics Registrar with a view to ensuring compliance with the Ethical Framework by all relevant persons. The County Manager replied to the Standards Commission setting out the revised procedures which had been followed by the Ethics Registrar in respect of declarations for 2007/08 which addressed the Standards Commission's concerns.

General

In view of its experience in dealing with the investigation of the complaints referred to above, the Standards Commission decided to write to every local authority Manager setting out its role in relation to the Ethical Framework for the Local Government Service. Briefly, all local avenues provided for by the Local Government Act 2001 should be pursued prior to considering making a complaint to the Standards Commission.

It stressed the need for the ethics registrar to pursue minor errors and corrections and to administer properly the receipt of annual declarations by members and employees with a view to ensuring that such persons are fully aware of their statutory obligations and that the incidence of contraventions is kept to a minimum. The provisions concerning the bringing of possible contraventions to the attention of the Manager and/or the Cathaoirleach as appropriate was emphasised. The Standards Commission informed local authorities of its view, which it set out in its annual report for 2006 that, as the register of interests is a public document of significant importance, it should be made available by each local authority on the internet in order to ensure widespread public awareness of the interests of local authority members and to enhance the standards of integrity and conduct required in the performance of local authority functions.

A copy of the letter was also sent to the Minister for the Environment, Heritage and Local Government, in view of his responsibility for local government legislation. The Standards Commision indicated that it welcomed the commitment in the Green Paper on Local Government Reform that the issues referred to in Chapter 13 - Ethics and Expenditure Limits - will be discused further with it.

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