Report in connection with a complaint received from Mr. Shane Hogan, concerning alleged breaches of

Section 168 of the Local Government Act, 2001

Nature of Complaint

The complaint was received via email by the Ethics Registrar, Ms. Lynda Fox, on the 16th of October 2011. A facsimile of the complaint is contained in pages 1 and 2 of the attached folder.

The cu111plaint alleges a "Breach of dury to maintain proper standards of integrity, conduct and concern for the public interest" against the County Manager, Mr. Owen Keegan

Mr. Hogan alleges that the Mr. Keegan was in breach of Section 16~ of the Local Government Act, 2001 following payments to Councillors Ward and Devlin for attendance at Degree Courses.

Procedure

On receipt of the complaint, the Ethics Registrar in accordance with Section 174 brought the complaint to the attention of me, as An Cathaoirleach, as the "appropriate person

• Under Section 174(7)(b) - where the possible contraventions are made against the County Manager; to An Cathaoirleach

Background

This complaint arose from the alleged verbal approval given by the County Manager, Mr. Owen Keegan for the payment by the Council of Degree Course fees for Councillors Ward and Devlin. In 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 com~laint", Mr. Hogan had been in correspondence by email witL the Council on l8t July, 22nJ July, 24th July and 11th Oclober 2011 respectively. These communications were in relation to a number of aspects of the Council's management and decision making in relation to its expenditure on educatiCI~, training and development programmes for Elected Members and the statutory basis for same (pages 3 to 66 of the attached folder).

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

Furthermore, on the :2nd of August Mr. Hogan initiated 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 parts of records were released to Mr. Hogan.

Part one was prepared by tAr. Ian Smalley (Corporate Services) (pages 73 to 126 of the attached folder). It contained correspondence between Mr. Hogan and Corporate Services and details of payments to Councillors Ward and Devlin. Part two (pages 141 to 155 of tbe attached folder) and pmi three (pages 156 to 207 of the attached folder) are mainly about communications within and between the Communications Office and various press outlets.

On the 16th of October 2n11 Mr. Hogan made a complaint under Section 168, which is the subject of this report.

Consideration:

The complaint against Owen Keegan is that he "approved payments to Councillors Barry Ward and Cormac Devlin for degree courses. Such payments are not permitted by Section 142 of the Local Government Act 2001, which refers to payments for 'conference, seminar, training or other meeting or event'. A degree course does not meet this definition. The LG2-10 guidelines issued by the Department a/Environment refer to payments for education within the context of an overall training and development programme. No such programme was in place when these payments were made. And regardless, departmental guidelines do not take precedence over legislation. The law is still the law. Mr. Keegan did not get approval from council members for such payments, as is required under Section 142 (5)(e) of the Act. )\1.r. Keegan gave verbal approval of these payments, not written approval as would be :xpected for payments of this nature. Mr. Keegan did not ensure that these payments were reported as part of overall reporting of Councillors expenses. Even though I pointed out to Afr. Keegan that these payments did not comply with legislation, he did not take legal advice. In summwy, .Mr Keegan approved payments that are not permitted by law"

Following the receipt of this complaint the Ethics Registrar forwarded the complaint in relation to the County Manager to me for consideration. Subsequently, the County Manager wrote to me on 151 November 201 I to respond to the allegations made in Mr. Hogan's complaint of the 16th of October 2011. ln it he advised me that he '\vas approached separarely by the tvvo Councillors concerned >vho enquired if the particular educarion courses thc_v were interested in pursuing could be jimded b.v the Council as part of' che training and education provision for Councillors included in the Council's Budget. Tlze Councillors indicated that participation on the education courses would be in lieu of their attendance at conferences and other training courses. Having made enquiries and having checked the Department's Guidelines I advised the Councillors in goodfaith that I was satisfied that the two courses could be

funded under this provision suhjecr to compliance with the Council's individual limits on expenditure on Councillor's rraining and education" He also reiterated what he said at the October Council meeting that he had "overlooked making rhe necessmy arrangements to seck Council apprm'Cl! for this expenditure, which is required under Section 142(5) of rhc Local Government Act 200 I. I accepted fill! responsibili(v for this oversighr. "

It is a matter of public record - Council Meeting 1oth October 2011 - that a technical breach of Section 142 (5) (e) occurred in that the Elected Members did not approve attendance at the courses concerned prior to those courses commencing. However, I can tlnd no reference in any Section of the Act that prohibits the retrospective approval of any decision made pursuant to Section 142. The decision of the Elected Members on the 1oth of October has in effect ratified the actions of the County Manager.

Furthermore, when one examines the wording of Section 142(5) (a), attendance on degree courses is not prohibited; it is my belief that the word "Training" encompasses a wide variety of courses including ones which lead to Degrees. Having regard to the above, I cannot agree with Mr. Hogan's assertion that the payments made or the actions ofMr. Keegan could be considered to be unlawful.

Having considered the above, it is also necessary to decide if the technical breach amounts to a breach of Section 168 of the Act. It is debateable whether a breach of Section 142 comes within the remit of Part 15 of the Act. However, for the purposes of this report, I will assume that it does even though the technical breach referred to above does not relate to dealings in land.

Therefore, the question is whether what transpired is actually a breach of Section 168? It is worth quoting this Section of the Act in full. "In carrying out their functions under this or any other enactment, it is the duty of eve1y member and every employee of a local authority and of eve1y member of every committee to maintain proper standards of integrity, conduct and concern for the public interest".

I am of the opinion that for a breach of Section 168 to have occurred, I would have to find that the conduct complained of amounted to a breach of integrity, conduct and concern for the public interest i.e. it is not good enough for me to find against Mr. Keegan on one of these issues as it seems to me that the wording means the findings have to be made on all three matters i.e. integrity, conduct and concern for the public interest.

It is mv belief havinc: reviewed the folder. considered the minutes of the Council meeting of lOth Octob-er and reviewed :rvlr. Keegan's letter to me that there was no intent on Mr. Keeg::m's behalf to breach Section 142. Furthennore, when Mr. Keegan was made ::1ware of the breach he made the necessary Jrrangements to have the matter regularised and took full responsibility for the administrative failings; hardly the actions of someone who lacks integrity, conduct or concern for the public interest.

Conclusion

Having considered all the information I am of the belief that Mr. Keegan has not breached Section 168 _ofthe Act and that no further investigation is required.

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Jolm F. Bailey An Cathaoirleach