Annual Report 2008

Complaints

The Ethics Acts 1995 and 2001 (the Ethics Acts) provide for a complaint to the Standards Commission where a contravention of the legislation may have occurred.

Complaints may be made under the Ethics Acts to the Standards Commission about office holders1, ministerial special advisers, and directors and employees of public bodies. Complaints against members of Dáil Éireann and Seanad Éireann, who are not office holders (ie. not Ministers, Ministers of State, Chairpersons and Deputy Chairpersons of Dáil Éireann and Seanad Éireann), must be made to the Committee on Members' Interests of Dáil Éireann or Seanad Éireann, via the Clerk of the Dáil or Seanad, as appropriate. The Clerk passes the complaint to the relevant Committee if there is sufficient evidence to establish a prima facie case in relation to the complaint.

Complaints under the Ethics Acts may concern an alleged contravention of a provision of the Ethics Acts or a 'specified act' (i.e., an act or omission which is inconsistent with the proper performance of public functions and which is of significant public importance).

Complaints may also be made to the Standards Commission about an alleged contravention of a provision of Part 15 of the Local Government Act 2001 - the Ethical Framework for Local Government - or about a specified act by a member or an employee of a local authority. It should be noted that the Local Government Act 2001 provides for consideration of contraventions of Part 15 by the manager and/or the Cathaoirleach of the local authority, where such contraventions have been brought to their attention by the council's ethics registrar. Where matters relating to alleged contraventions by a member or employee of a local authority are raised, these should be dealt with in the first instance by the local authority itself, insofar as is possible. Accordingly, the Standards Commission advises persons wishing to complain about a councillor or council employee to raise the matter with the ethics registrar in the first place. As referred to later in this report, the Standards Commission has had discussions with the Department of the Environment, Heritage and Local Government with a view to legislating for an explicit procedure for complaints about local authority members and employees.

Statistics

In 2008, the Standards Commission received 38 complaints, 18 of which were deemed to be invalid. Complaints were considered invalid for a variety of reasons. In some cases, there was no prima facie evidence of a contravention by a person of a provision of the Ethics Acts, such as a failure to disclose an interest where required to do so, or an alleged specified act by a specified person. In a number of cases, the complaint concerned the actions of a public body rather than a 'specified person'. In others, the complaint was made against a 'specified person', e.g., the head of a public body, but provided no evidence that the act complained of was done by that individual personally, in which case the complaint is more appropriately considered as being against a public body. Such complaints cannot be accepted under the Ethics Acts, which provides for complaints about actions taken personally by individuals.

While the level of complaint remains low, the proportion of those received which had to be considered to be invalid reinforces the view of the Standards Commission set out in previous annual reports that the complaints provisions of the Ethics Acts, especially those relating to a 'specified act' by a 'specified person', are difficult for potential complainants to understand.

Former Taoiseach Bertie Ahern TD

The Standards Commission received a complaint in early 2008 from Senator Eugene Regan concerning the making of a statutory declaration by former Taoiseach Bertie Ahern TD in accordance with his obligations as a member elected to Dáil Éireann in 2002. The declarations made stated that, to the best of his knowledge and belief, Mr Ahern was in compliance with the obligations specified in section 25(1) of the Standards in Public Office Act 2001 and that nothing in section 25(2) of the Standards in Public Office Act 2001 prevented the issue to him of a tax clearance certificate. Senator Regan noted that in a statement issued on 6 January 2008, Mr Ahern had stated that, following contact initiated by the Revenue Commissioners, he had paid them money on account in recent months in respect of his tax liability and that he had also confirmed that he did not expect to be furnishing a Tax Clearance Certificate to the Standards Commission, but would be furnishing an Application Statement, pending the resolution of his discussions with the Revenue Commissioners. The complainant asserted that this raised an important issue about the circumstances in which Mr Ahern was able to meet the same requirements as a member of the 29th Dáil and furnished evidence or declarations to this effect at that time. A number of similar complaints about Mr Ahern were also received.

The Standards Commission decided it would not be appropriate for it to pursue the matter until the Revenue Commissioners had completed their consideration of Mr Ahern's tax liabilities. It is a matter solely for the Revenue Commissioners to determine whether a person is tax compliant. Consequently, any question as to whether a person may have made a false declaration as to his or her own tax compliance can only be addressed once the Revenue Commissioners had made a determination that the person was not in compliance with his or her obligations under the relevant tax legislation.

The Standards Commission wrote to Mr Ahern informing him of the complaint and of its decision as set out above. It also informed him that in the event that the Revenue Commissioners make a determination in his case that he was not in compliance with his obligations, the Standards Commission may decide to consider the matter again at that stage.

Killarney Town Council

Following an investigation hearing in 2007, the Standards Commission referred a report to the Director of Public Prosecutions about alleged breaches of the Local Government Ethical Framework by Councillor Patrick O'Donoghue. He was subsequently charged with offences under the Local Government Act 2001 and at a hearing in the Circuit Criminal Court in Tralee on 12 March 2009, Councillor O'Donoghue pleaded guilty to a charge that he "being a member of Killarney Town Council and being a person with actual knowledge of his beneficial interest in certain lands at Killarney on dates between January 1, 2006 and March 6, 2006, at Killarney - sought to influence a decision of Killarney Town Council in respect of a matter regarding the performance by that authority of its functions under the Planning Act 2000, namely the rezoning of those lands". A charge that he failed to withdraw from the Council meeting on the night of March 6, 2006, when the motion was considered, was withdrawn. The matter was then adjourned to 30 June 2009.

Shannon Town Council

The Standards Commission considered a complaint about the alleged failure of Councillor Patricia McCarthy to disclose an interest, as a director of Shannon Swimming and Leisure Centre Ltd., in the course of meetings of Shannon Town Council in which community funding was discussed. She was also alleged to have participated in such meetings.

The Standards Commission appointed an Inquiry Officer under section 6(1) of the Standards in Public Office Act 2001. The Inquiry Officer conducted a preliminary inquiry of the complaint by obtaining statements from relevant witnesses, by presenting these statements to Councillor McCarthy and by obtaining a statement from her. The Inquiry Officer provided a report to the Standards Commission in which he reported that Councillor McCarthy confirmed that she is a Director of the Leisure Centre. She also stated that as she had never benefited financially from her involvement with the centre and, as it is a Community facility, she had never understood this to mean that it was a beneficial or pecuniary interest and declarable under the Local Government Act 2001. Councillor McCarthy's statement acknowledged that she was fully aware of the requirements of the Local Government Act 2001 and the Code of Conduct for Councillors. She said, however, that the de minimis provisions of section 176 of the Local Government Act 2001 apply in this case, in that section 176(3) provides that "a person shall not be regarded as having a beneficial interest which has to be disclosed ... because of - (a) 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 the matter or in performing any function in relation to that matter".

The Standards Commission considered the question of whether an investigation under the Ethics Acts was warranted in the light of the Inquiry Officer's report. It considered that as the complaint was made under section 4 of the Standards in Public Office Act 2001, it had to consider not only whether Councillor McCarthy had contravened the provisions of the Local Government Act 2001, but whether any or all of those contraventions was a "specified act", i.e., an act or omission which is inconsistent with the proper performance of the functions of, in this case, membership of a local authority or which is inconsistent with the maintenance of confidence in such performance and which is of significant public importance.

The Standards Commission decided that it did not accept Councillor McCarthy's contention that section 176(3)(a) of the Local Government Act applied. However, it decided that, while there may have been contraventions by Councillor McCarthy of the Local Government Act 2001, none of the alleged acts could be considered to fall within section 4(1)(a) of the Standards in Public Office Act 2001, as those acts were not of significant public importance. The Standards Commission accordingly found that there was no basis on which to initiate an investigation under the Ethics Acts. In reaching this decision, the Standards Commission took into account the fact that no benefit was received by Councillor McCarthy or by a "connected person" as set out in section 4(6)(b) of the Standards in Public Office Act 2001.

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