13/04/11 - Investigation Report - Councillor, Donegal County Council

1. Introduction

The Commission was established by section 21 of the Ethics Act, as amended by section 2 of the Standards Act, as brought into operation by the Standards in Public Office Act 2001 (Commencement) Order 2001.  The members of the Commission are:

• Mr Justice M. P. Smith (Chairman)
• Ms Emily O'Reilly, Ombudsman
• Mr John Buckley, Comptroller and Auditor General
• Mr Kieran Coughlan, Clerk of Dáil Éireann
• Ms Deirdre Lane, Clerk of Seanad Éireann
• Mr Michael Smith, former member of Dáil Éireann

The Commission's role, briefly, is to supervise the Ethics Acts in so far as they concern office holders, an Attorney General who is not a member of a House of the Oireachtas, Ministerial special advisers, designated directors and employees of specified public bodies and certain civil servants; to provide guidance and advice on the applicability of the Ethics Acts and to carry out investigations into possible contraventions of the Ethics Acts and/or Part 15 of the Local Government Act.

The investigative function of the Commission is a formalised procedure giving its Chairman statutory powers that include the power to compel the attendance of witnesses and to procure documents or other material. The Ethics Acts oblige the Commission to hold sittings for the purpose of investigations.  The detailed procedure determined by the Commission for the conduct of investigations is available on the Commission's website at www.sipo.gov.ie.

Having carried out an investigation under section 23 of the Ethics Act to determine whether there has been a contravention of the Ethics Acts or of Part 15 of the Local Government Act, the Commission, pursuant to section 24 of the Ethics Act and section 180 of the Local Government Act, is required to prepare a report and to furnish a copy of the report to:

• the person the subject of the investigation,
• a person who made a complaint,
• where a report relates to the Cathaoirleach of a local authority, to the Leas-Cathaoirleach and the Manager of the authority,
• where a report relates to any other member of a local authority, to the Cathaoirleach and the Manager of the authority and
• the Minister for Finance.

In addition, section 24(2) of the Ethics Act provides that, where the 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.

This report, under section 24 of the Ethics Act, sets out the findings of the Commission together with its determinations in relation to:

(a) whether there has been a contravention of Part 15 of the Local Government Act, and whether the contravention is continuing, or whether there has been done a "specified act" within the meaning of the Ethics Acts,

(b) in case the determination is that there has not been a contravention of Part 15 or that there has not been done a "specified act", whether the Commission is of opinion that the complaints made were frivolous or vexatious or that there were no reasonable grounds for them, and

(c) in case the determination is that there has been a contravention of Part 15 or that a "specified act" has been done -

(i) if the determination is that the contravention is continuing, the steps required to be taken to secure compliance with Part 15, and the period of time within which such steps should be taken,

(ii) whether the contravention was committed inadvertently, negligently, recklessly or intentionally,

(iii) whether the contravention was, in all the circumstances, a serious or a minor matter, and

(iv) whether the person being investigated acted in good faith and in the belief that his or her action was in accordance with guidelines published or advice given in writing by the Commission under section 25 of the Ethics Act.

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