13/12/07 - Report on disclosure of donations and election expenses at Dáil general election of 2007

3.3 - Election Expenses the costs of which were originally met out of public funds

Arising from the judgment in Kelly v. Minister for the Environment & Ors 2002 (4 I.R. 191), where property, services or facilities were used for electoral purposes during the election period and the costs were originally met out of public funds, such costs must be accounted for as election expenses at their full commercial value. In its annual report for 2006, the Standards Commission noted that the use of public funds for electoral purposes is a major issue which requires to be re-evaluated in consideration of future changes to the electoral law.

The Standards Commission was cognisant of the fact that some candidates at the election who were already public representatives (e.g., MEPs, Senators and local authority members) might be required to communicate with their constituents during the election period. Similarly, outgoing members of the Dáil might also have residual constituency business to conduct.

The Standards Commission was also made aware by the Houses of the Oireachtas Commission that, in accordance with the Houses of the Oireachtas Commission Act 2006, it had introduced statutory guidelines on the use of Oireachtas facilities for outgoing members of the Dáil. The purpose of these guidelines was to:

1. identify and notify to members the services and facilities which would or would not be available to them following a dissolution of the Dáil; and
2. set out how members would be required to certify and reimburse the Oireachtas Commission for use of publicly funded services and facilities other than in respect of duties as a public representative.

The guidelines mainly concern those services and facilities which continued post-dissolution, i.e., secretarial staff, use of office and ICT equipment, access to Leinster House offices and use of telephone and copying facilities. The guidelines also cover the use of facilities which ceased to be available on dissolution but which could be retained for use following dissolution, e.g., material printed in the Leinster House printing facility, pre-paid envelopes and stationery.

As noted in its annual report for 2006, the Standards Commission is of the opinion that there is a certain ambiguity as to what constitutes reckonable expenditure for electoral purposes and other public representative activity. In view of this, and having regard to the guidelines issued by the Houses of the Oireachtas Commission, the Standards Commission considered it necessary, therefore, to differentiate between the use Oireachtas facilities (including staff) in carrying out reasonable constituency business and the use of such facilities for electoral purposes. In its guidelines for the election the Standards Commission advised that during the election period, where facilities the costs of which were met from public funds were used for the purpose of any form of unsolicited communication to any of the electorate in the constituency, the facilities would have to be regarded as having been used for electoral purposes and the costs accounted for (at their full commercial value) as an election expense. This would also apply to unsolicited material issued by elected representatives, other than the candidate, where the material either promotes or opposes a candidate or otherwise seeks to influence the outcome of the election.

To address the issue of outgoing Members' residual constituency business, the Standards Commission advised that where a new enquiry was raised with a candidate (i.e., an enquiry which had not been raised with the candidate prior to the election) while he/she was canvassing and Oireachtas facilities (including staff) were used for the purposes of responding to the enquiry, the facilities would be regarded as having been used for electoral purposes.

Prior to the election campaign, the Standards Commission also received a number of enquiries from outgoing Members regarding the use of Members' staff and in particular the taking of leave by staff. The Standards Commission published additional guidelines on its website which dealt specifically with this issue. The Standards Commission advised that if a member of a Minister's/Minister of State's staff or an Oireachtas Member's staff was engaged in his/her normal duties during the election period and was not providing a service which was for electoral purposes, then the cost of carrying out such activities was not regarded as an election expense. The Standards Commission also advised that where a member of staff took annual leave to work on a Ministers'/Members' election campaign on a voluntary basis during the election period, the work carried out by them would be deemed to have been carried out as a free service and, notwithstanding the fact that this work may be similar to their normal work, (which could be regarded as a benefit-in-kind) the cost of their salaries while working voluntarily would not be regarded as election expenses for the purposes of the Act. The Standards Commission recommended that proper records of holidays accrued and taken by staff should be maintained. In providing this advice the Standards Commission was mindful that The High Court, in the Kathy Sinnott petition of 2003, had established that, where a person paid from public funds chose to take paid annual leave in order to work in an unpaid volunteer capacity that person's salary was not reckonable as an election expense.

It was a matter for the election agent (or the national agent of a political party, if appropriate) and the candidate, in consultation with the provider of the property, services or facilities, to determine the value of such usage for electoral purposes and to account for this in the relevant Election Expenses Statement. While the Standards Commission acknowledges that charging for facilities is a matter between the candidate and the provider concerned in the first instance, it is of the view that there is a need for clarity as to how the electioneering element of the use of these facilities is assessed by the candidates themselves. As suggested in its annual report for 2006, the Standards Commission is of the opinion that providing such clarity within the ambit of the electoral code rather than as part of other legislation which patently has quite a separate purpose (the Houses of the Oireachtas Commission Act 2006) would better ensure a level playing pitch for all candidates.

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