Report in connection w i t h a complaint received f r o m M r .

, concerning Shane Hogan, alleged breaches o f Section 1 6 8 o f t h e Local Government Act, 2001

N a t u r e of Complaint:

The complaint was received via email b y the Ethics Registrar, Ms. ~ October 2011. A facsimile of the complaint Lynda Fox, on t h e 1 6 o f ~ is contained in pages 1 and 2 of the appended folder. Tlie complaint alleges a "Breach of d u t y t o maintain proper standards o f integrity, conduct and concern for the public interest" against the following individuals: (I) (2) Mr. Barry Ward, Councillor M r . Cormac Devlin, Councillor

Mr. Hogan is alleging that t h e aforementioned persons were in breach of Section 168 of the Local Government Act, 2 0 0 1 following payments t o Councillors Ward and Devlin for attendance at Degree Courses.
Procedure

On receipt o f the complaint, the Ethics Registrar in accordance w i t h Section 174 brought the complaint t o t h e attention of t h e "appropriate persons", in this case, An Cathaoirleach and the County Manager. Under Section 174(7)(e) - where t h e possible contraventions are made against t w o Councillors; t o the Manager and An Cathaoirleac h ,4s the County Manager is one of the parties affected by the functions under Section 174 (7) and ( 8 ) complaint, h e delegated t ~ i s to Mr. Richard Shakespeare, Director o f Environment, Culture and Community p u r s ~ ~ ato t Section 154 of the Local Government Act, n 2001.

The background t o this complaint arose from t h e alleged verbal sanctioning by t h e County Manager, Owen Keegan for the payment by t h e Council of Degree Course fees for Councillors Ward and Devlin. I n the case of Councillor Ward, a Master's Degree in Economic Policy a n d in the case of Councillor Devlin, a Degree in Public Management. Prior t o the "Section 168 complaint", Mr. Hogan had been in July, correspondence b y email with t h e Council ( 1 8 ~ ~ 22"d July, 24th July and 1lth October 2011). These corrn~unicationswere in relation t o a n u m b e r of aspects of .the Council's management and decision making in relation to its expenditure o n education, training and development programmes for Elected Members and t h e statutory basis f o r same (pages 3 t o 66 of t h e appended folder). On t h e 1'' o f August Mr. Hogan made a complaint t o the County Manager concerning the payment of education expenses t o Councillors Ward a n d Devlin (pages 67 t o 72 o f t h e appended folder). Furthermore on t h e 2nd of August Mr. Hogan initiated a specific Freedom of Information Act request for records relating t o t h e payment of expenses t o 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 a n Smalley (Corporate Services) (pages 73 t o 126 o f the appended folder). These relate to correspondence between M r . Hogan and Corporate Services and details of payments t o Councillors Ward and Devlin. Tranche two (pages 1 4 1 to 155 of .the appended folder) and Tranche three (pages 1 5 6 to 207 of the appended folder) are largely related to communications within and between the Communications Office and various press outlets. On the 1 6 : ~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 b y both An Cathaoirleach, Councillor and b y Richard Shakespeare pursuant to Section John Ba~ley :74(7)(e) of .the 2 0 0 1 Act.

Councillor Ward The complaint against Councillor Ward is t h a t h e "applied for payment of expenses t h a t are n o t 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 t h a 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 t h e relevant laws" The County Manager is on the record [reference Minutes of Council Meeting of l o t h October 2 0 1 1 (pages 216 t o 2 2 2 of t h e appended folder) and webcast of same meeting] as saying t h a t h e was approached by Councillor Ward, who enquired i f t h e ld by Masters Degree course in Economic Policy c o ~ ~ be f l ~ n d e d .the Council as part of the training and education provision for Councillors included in t h e Council's Budget. Having made enquiries and having checked t h e Department's Guidelines (pages 2 1 t o 26 of the appended folder) Mr. Keegan advised Councillor Ward that he was satisfied t h a t t h e course could be funded under t h e provision f o r training and education subject to compliance with t h e Council's individual limits o n expenditure on Councillors training and education as determined by t h e Department (Statutory I n s t r u m e n t No. 37/2010). The Council subsequently paid a sum of 10,085 on foot of Purchase Order 4 0 0 2 0 9 6 8 5 t o Trinity College Dublin for Councillor Ward's attendance on t h e Masters Degree Course.

Mr. Keegan a t t h e County Council Meeting of 1 0 t h October 2011 advised Councillors that he had ovel-looked making t h e necessary arrangements t o seek Council approval for t h e above expenditure in accordance with Section 142(5) o f the Local G o v e r r ~ m e n Act 2001 t and took full responsibility for this oversight. Following consideration o f t h e matter, the above payment t o Councillor Ward was put t o t h e Council Meeting o f 1PhOctober 2 0 1 1 f o r approval (pages 221-222 o f the appended folder) and t h e 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". I t is worth noting t h a t t h e r e is no prevision within Section 142 which prohibits retrospective approval of payments that have been made.
Conclusion Given the fact t h a t Councillor Ward was advised by t h e County Manager that the payment by t h e Council of the course fees from

the education and training budget w a s possible a n d t h a t i t is t h e Council Adrnir~istration's responsibility t o ensure t h a t p a y m e n t s f o r training and education go "through properprocedure" i , e . a r e p u t before .the Council f o r approval p u r s u a n t t o Section 1 4 2 (5), i t is difficult t o accept that Councillor Ward is in breach o f Section 1 6 8 o f t h e Local Government Act 2001, irrespective of w h e t h e r h e is a legal professional or not. We conclude t h a t there was n o breach o f Section 142. We further find t h a t t h e r e has been no breach o f Section 1 6 8 . Accordingly, i t is t h e v i e w o f the undersigned t h a t n o further investigation of t h e m a t t e r is warranted. I t is however noted t h a t Councillor Ward has not placed his course notes/handouts a t the disposal o f t h e Elected Members i n accordance w i t h Section 1 4 2 ( 5 ) ( f ) . Accordingly, i t is r e c o m m e n d e d t h a t Councillor Ward place his course notes and h a n d o u t s i n t h e Corporate Services Department f o r a period o f 6 m o n t h s . He s h o ~ ~ l d also prepare a s u m m a r y o f t h e course outlining its benefits t o t h e Council, t h e wider community and b e asked t o d e m o n s t r a t e t h a t t h e course was value f o r m o n e y and present the report t o n e x t appropriate meeting of t h e Council i n accordance w i t h t h e Section 142(5)(f) o f t h e Act. Councillor Devlin The complaint against Councillor Devlin 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 o n t h e record [reference Minutes o f C o ~ ~ n c i l Meeting o f l o t h October 2 0 1 1 (pages 2 1 6 to 2 2 2 of t h e appended folder) and webcast of s a m e m e e t i n g ] as saying t h a t h e was approached b y Councillor Devlin, w h o enquired i f t h e BA in Public Administration could b e funded b y t h e Council as p a r t of t h e training and education provision for Councillors included in t h e Council's Budget. Having m a d e enquiries Mr. Keegan adviszd Councillor Devlin t h a t h e was satisfied t h a t .the course could b e funded under t h e provision for training and educatiol-l subject t o compliance w i t h t h e Council's training a n d individual limits o n expenditure o n Counc~llors education as determined b y the D e p a r t m e n t . The Council subsequently paid a total o f 9,200 ( 6 payments) f o r t h e years Orders t o t h e I n s t i t u t e of 2 0 0 6 t o 2 0 1 1 on foot of various P ~ ~ r c h a s e Public Administration f o r Councillor Devlin's attendance o n t h e BA in

Pl~blic Administration. On investigation t w o of these payments were discovered t o be related to repeat exam fees (Purchase Orders 4002127975 in t h e amount of 460 relating t o t h e 2010/11 Academic Year a n d 400174446 i n the amount o f 450 relating to the 2008/09 Academic year). ty Mr. Keegan a t t h e C o ~ ~ nCouncil Meeting of 1 0 t h October 2 0 1 1 advised Councillors that he had overlooked making the liecessary arrangements t o seek Council approval f o r t h e above expenditure in accordance w i t h Section 132(5) of the Local Government Act 2001. The above payments to Councillor Devlin were p u t t o the C o ~ ~ n c i l Meeting o f l o t h October 2 0 1 1 for approval (page 221 of the appended folder) and the following Resolution was passed "That the attendance a t BA in Public Management, Institute 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) b y Councillor C. Devlin be Adopted and Approved in accordance with Section 142,5 of the L o c ~ Government Act 2001 " l Conclusion Given the fact t h a t Councillor Devlin was advised by t h e County Manager t h a t t h e payment by the Council of the course fees from the education and training budget was possible and t h a t it is the Council Administration's responsibility t o ensure that payments for training and education go "through proper procedure"i.e. are put 5, before t h e Council for approval pursuant t o Section 1 4 2 ( ) it is difficult t o accept t h a t Councillor Devlin is in breach o f Section 168 of the Local Government Act 2001. As there was no breach of Section 1 4 2 b y Councillor Devlin as detailed above, it is considered that there could b e no breach of Section 1 6 8 by Councillor Devlin. Accordingly, i t is t h e view of the under signed t h a t no further investigation o f t h e matter is warranted. I t is however noted that Councillor Devlin has n o t piaced his course notes/handouts a t the disposal o f the Elected Members in accordance w i t h 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 t o the Council, the wider community and be asked t o demonstrate that the course was value for money and present the report t o next appropriate m e e t i n g of the Council in accordance with Section 142(5)(f) of t h e Act. Furthermore i t is noted that Col~ncillorDevlin was in receipt of repeat exam fees which do not appear to be explicitly covered by the above resolution. I t is considered unreasonable for the Council

to cover the cost o f such repeat fees. I t is w o r t h noting t h a t where covers the tuition fees for staff members, t h e cost o f the C o ~ ~ n c i l I repeat exam fees is not recol-~pablefrom the C o u n c ~ l . n this regard it is recommended that Councillor Devlin be asked t o recoup the repeat exam fees f o r the Academic years 2008/09and 2010/11 in a reasonable time frame to the Council.

. - !

Richard Shakespeare Director o f Services

John F. Bailey An Cathaoirleach