Report in connection wi th a complaint received from Mr . Shane Hogan, , concerning alleged breaches of Section 168 o f t h e Local Government Act, 2001

Nature of Complaint:

The complaint was received via email by the Ethics Registrar, Ms. Lynda Fox, on the 1 6 ~ ~ of October 2011. A facsimile of the complaint is contained in pages 1 and 2 of the appended folder.

Tlie complaint alleges a "Breach of duty to maintain proper standards o f integrity, conduct and concern for the public interest" against the following individuals:

( I ) Mr. Barry Ward, Councillor (2) M r . Cormac Devlin, Councillor

Mr. Hogan is alleging that the aforementioned persons were in breach of Section 168 of the Local Government Act, 2001 following payments to Councillors Ward and Devlin for attendance at Degree Courses.

Procedure

On receipt o f the complaint, the Ethics Registrar in accordance wi th Section 174 brought the complaint to the attention of the "appropriate persons", in this case, An Cathaoirleach and the County Manager.

Under Section 174(7)(e) - where the possible contraventions are made against two Councillors; to the Manager and An Cathaoirleac h

,4s the County Manager is one of the parties affected by the complaint, he delegated t~ i s functions under Section 174 (7) and (8) to Mr. Richard Shakespeare, Director o f Environment, Culture and Community p u r s ~ ~ a n t to Section 154 of the Local Government Act, 2001.

The background t o this complaint arose from the alleged verbal sanctioning by the County Manager, Owen Keegan for the payment by the Council of Degree Course fees for Councillors Ward and Devlin. I n the case of Councillor Ward, a Master's Degree in Economic Policy and in the case of Councillor Devlin, a Degree in Public Management.

Prior to the "Section 168 complaint", Mr. Hogan had been in correspondence b y email with the Council ( 1 8 ~ ~ July, 22"d July, 24th July and 1 lth October 2011). These corrn~unicat ions were in relation to a number of aspects of .the Council's management and decision making in relation to its expenditure on education, training and development programmes for Elected Members and the statutory basis for same (pages 3 to 66 of the appended folder).

On the 1'' o f August Mr. Hogan made a complaint to the County Manager concerning the payment of education expenses to Councillors Ward and Devlin (pages 67 to 72 o f the appended folder).

Furthermore on t h e 2nd of August Mr. Hogan init iated a specific Freedom of Information Act request for records relating to the payment of expenses to Councillors Ward and Devlin (reference FOI/0029/2011). Three tranches of records were released t o Mr. Hogan.

Tranche one was prepared by Mr. I an Smalley (Corporate Services) (pages 73 to 126 o f the appended folder). These relate to correspondence between Mr . Hogan and Corporate Services and details of payments to Councillors Ward and Devlin. Tranche two (pages 141 to 155 of .the appended folder) and Tranche three (pages 156 to 207 of the appended folder) are largely related to communications within and between the Communications Office and various press outlets.

On the 16:~ o f October 2011 Mr. Hogan made a complaint under Section 168, which is the subject of this report.

Consideration

This report has been prepared by both An Cathaoirleach, Councillor John Ba~ley and b y Richard Shakespeare pursuant to Section :74(7)(e) of .the 2001 Act.

Councillor Ward The complaint against Councillor Ward is that he "applied for payment of expenses that are not permitted in law, i. e. payment for education. The degree course concerned - Masters in Economic Policy- has no relevance to Cllr Ward's role and work as a County Councillor. Cllr Ward accepted payment of expenses tha t had not gone through proper procedure, i.e. approval by members. Given that Cllr Ward is a barrister and former legal advisor t o Enda Kenny, he has no reasonable excuses for not being aware of the relevant laws" The County Manager is on the record [reference Minutes of Council Meeting of l o t h October 2011 (pages 216 to 222 of the appended folder) and webcast of same meeting] as saying that he was approached by Councillor Ward, who enquired i f the Masters Degree course in Economic Policy c o ~ ~ l d be f l ~ n d e d by .the Council as part of the training and education provision for Councillors included in the Council's Budget. Having made enquiries and having checked the Department's Guidelines (pages 2 1 t o 26 of the appended folder) Mr. Keegan advised Councillor Ward that he was satisfied tha t the course could be funded under the provision for training and education subject to compliance with the Council's individual limits on expenditure on Councillors training and education as determined by t h e Department (Statutory Instrument No. 37/2010). The Council subsequently paid a sum of €10,085 on foot of Purchase Order 400209685 to Trinity College Dublin for Councillor Ward's attendance on the Masters Degree Course.

Mr. Keegan a t the County Council Meeting of 10 th October 2011 advised Councillors that he had ovel-looked making the necessary arrangements to seek Council approval for the above expenditure in accordance with Section 142(5) o f the Local Goverr~ment Act 2001 and took full responsibility for this oversight. Following consideration of the matter, the above payment to Councillor Ward was put to the Council Meeting o f 1Ph October 2011 f o r approval (pages 221-222 o f the appended folder) and the following Resolution was passed "That the attendance a t Masters (MSc) in Economic Policy Studies, Trinity College, Dublin 2, September 201 0 - March 201 1 . (Academic Year 201 0/2011) by Councillor 8. Ward be Adopted and Approved in accordance with Section 142,s of the Local Government Act 2001". It is worth noting that there is no prevision within Section 142 which prohibits retrospective approval of payments that have been made.

Conclusion Given the fact tha t Councillor Ward was advised by the County Manager that the payment by the Council of the course fees from

the education and training budget was possible and t h a t i t is t h e Council Adrnir~istration's responsibil ity t o ensure tha t payments fo r training and education go "through properprocedure" i ,e . a re pu t before .the Council for approval pursuant to Section 1 4 2 (5), i t is difficult t o accept that Councillor Ward is in breach of Sect ion 1 6 8 o f the Local Government Act 2001, irrespective of whether he is a legal professional or not. We conclude that there was n o breach o f Section 142. We further find that there has been no breach o f Section 168. Accordingly, i t is t he v iew of the undersigned t h a t n o further investigation of t he mat te r is warranted. I t is however noted that Councillor Ward has not placed his course notes/handouts a t the disposal o f t h e Elected Members i n accordance wi th Section 142(5)( f ) . Accordingly, i t is recommended that Councillor Ward place his course notes and handouts i n the Corporate Services Department fo r a period o f 6 months. He s h o ~ ~ l d also prepare a summary o f the course outlining i ts benef i ts t o t h e Council, t h e wider community and be asked t o demonst ra te tha t t h e course was value fo r money and present the report t o n e x t appropriate meet ing of t he Council in accordance wi th t h e Section 142(5)(f) o f t he Act.

Councillor Devlin

The complaint against Councillor Devl in is that h e "applied for payments of expenses that are not permitted in law, i.e. payment for education. Cllr Devlin accepted payment of expenses that had not gone through proper procedure, i.e. approval by members. Cllr Devlin sought and received payments to cover repeat exam fees. It is completely unreasonable that any public body should pay repeat fees in any circumstance"

The County Manager is on the record [reference Minutes o f C o ~ ~ n c i l Meeting o f l o t h October 2 0 1 1 (pages 216 to 222 of t he appended folder) and webcast of same meet ing] as saying tha t h e was approached by Councillor Devlin, who enquired i f the BA in Public Administration could b e funded by t h e Council as par t of t he training and education provis ion for Councillors included in the Council's Budget.

Having made enquiries Mr. Keegan adviszd Councillor Devlin tha t he was satisfied that .the course could be funded under t h e provision for t raining and educatiol-l subject t o compliance wi th t h e Council's individual l imits on expenditure o n Counc~l lors training and education as determined by the Depar tment . The Council subsequently paid a total o f €9,200 (6 payments) fo r t h e years 2006 to 2 0 1 1 on foot of various P ~ ~ r c h a s e Orders to the Ins t i tu te of Public Administration fo r Councillor Devlin's attendance on t h e BA in

Pl~blic Administration. On investigation two of these payments were discovered t o be related to repeat exam fees (Purchase Orders 4002127975 in t h e amount of €460 relating to the 2010/11 Academic Year and 400174446 in the amount o f €450 relating to the 2008/09 Academic year).

Mr. Keegan a t the C o ~ ~ n t y Council Meeting of 10th October 2011 advised Councillors that he had overlooked making the liecessary arrangements to seek Council approval for the above expenditure in accordance wi th Section 132(5) of the Local Government Act 2001. The above payments to Councillor Devlin were put to the C o ~ ~ n c i l Meeting o f l o t h October 2011 for approval (page 221 of the appended folder) and the following Resolution was passed "That the attendance a t BA in Public Management, Inst i tute of Public Administration, 57-61 Lansdowne Road, Dublin 4 September 2006 - January 201 1. (Academic Years 2006/2007, 2007/2008, 2008/2009, 2009/2010, 201 0/2011) by Councillor C. Devlin be Adopted and Approved in accordance with Section 142,5 of the L o c ~ l Government Act 2001 "

Conclusion

Given the fact t ha t Councillor Devlin was advised by the County Manager tha t the payment by the Council of the course fees from the education and training budget was possible and that i t is the Council Administration's responsibility to ensure that payments for training and education go "through proper procedure"i.e. are put before the Council for approval pursuant to Section 142 (5), it is difficult to accept that Councillor Devlin is in breach o f Section 168 of the Local Government Act 2001. As there was no breach of Section 142 by Councillor Devlin as detailed above, it is considered that there could b e no breach of Section 168 by Councillor Devlin. Accordingly, i t is the view of the under signed that no further investigation o f t h e matter is warranted. I t is however noted that Councillor Devlin has not piaced his course notes/handouts a t the disposal o f the Elected Members in accordance wi th Section 142(5)(f). Accordingly, i t is recommended that Councillor Devlin place his course notes and handouts in the Corporate Services Department for a period of 6 months. He should also Frepare a slJmmary of the course outlining its benefits to the Council, the wider community and be asked to demonstrate that the course was value for money and present the report to next appropriate meet ing of the Council in accordance with Section 142(5)(f) of the Act. Furthermore i t is noted that Col~ncil lor Devlin was in receipt of repeat exam fees which do not appear to be explicitly covered by the above resolution. It is considered unreasonable for the Council

to cover the cost o f such repeat fees. I t is wor th noting tha t where the C o ~ ~ n c i l covers the tuition fees for staff members, the cost o f repeat exam fees is not recol-~pable from the Counc~ l . I n this regard i t is recommended that Councillor Devlin be asked t o recoup the repeat exam fees fo r the Academic years 2008/09 and 2010/11 in a reasonable t ime frame to the Council.

. - !

Richard Shakespeare Director o f Services

John F. Bailey An Cathaoirleach