Letter to the Minister for the Environment, Heritage and Local Government re Mayo County Council investigation

The Chairman of the Standards in Public Office Commission has written to the Minister for the Environment, Heritage and Local Government in relation to its recent report of an investigation of complaints concerning an employee of Mayo County Council.

The text of the letter is set out below. A copy of the letter has been issued to the Mayo County Manager, the Cathaoirleach of Mayo County Council and to the complainant.

Letter to Minister

29 April 2011

Mr Phil Hogan TD
Minister for the Environment,
Heritage and Local Government
Department of the Environment,
Heritage and Local Government
Custom House
Dublin 1

Dear Minister,

Further to my letter of 22 March 2011 concerning the report of an investigation of a complaint made by Mr Roger McGreal against an employee of Mayo County Council and following the report made by Mr Peter Hynes, County Manager, to the meeting of Mayo County Council on 11 April 2011 in relation to the matter, I would now like to raise some further concerns of the Standards Commission.

Notice of Motion Procedure

In the view of the Standards Commission, this case illustrates serious deficiencies in the operation of the notice of motion procedure as operated by Mayo County Council. The Commission understands that similar procedures are also operated by some other, though not all, local authorities. It also emerged during the investigation that it was not unusual for employees of Mayo County Council to approach members of the Council in the expectation that their areas would benefit from notice of motion monies.

One striking administrative defect in the case investigated by the Standards Commission was the almost complete lack of records relating to the use of public resources. While the new procedure adopted by Mayo County Council may result in some improvements as far as the use of the procedures by employees of that body, the notice of motion procedure itself does not appear to represent best practice in the disbursement of public funds and the Standards Commission considers that it, and any other discretionary funds allocated to individual local authority members, ought to be reviewed on a national basis by your Department. Such a review should be undertaken with a view to the adoption of procedures which are designed to ensure that scarce public resources are expended by local authorities in the public interest and not in the interests of private individuals, be they employees or members of local authorities or any other persons.

County Manager's report to Mayo County Council

In his report, Mr Hynes would appear to misapprehend the position of the Standards in Public Office Commission and the findings and determinations made in the investigation report. I would like to clarify a number of important points.

  1. Contrary to Mr Hynes' report, the only independent investigation of this complaint was carried out by the Standards in Public Office Commission whose statutory mandate is, inter alia, the independent investigation of complaints properly made under the Ethics Acts and Part 15 of the Local Government Act 2001. The legislation prescribes formal procedures for such investigations designed to protect the rights of the parties involved. The investigation was commenced by the Commission following receipt of a report by an Inquiry Officer. The legislation also prescribes that investigations are conducted by means of formal - and usually public - sittings of the six member Commission. The Standards Commission has previously expressed the view to the previous Ministers and to your Department and in its annual reports that an explicit statutory procedure for the making of complaints about alleged contraventions of Part 15 of the Local Government Act 2001 should be put in place to clearly set out the responsibilities at local level and those of the Standards Commission in relation to such complaints. The Standards Commission considers that the present case demonstrates the need for such reforms to be enacted as a matter of urgency.
  2. It must be clearly understood that the Ethics Acts do not permit the investigation of frivolous or vexatious complaints by the Standards Commission. In deciding that the complaints warranted the initiation of an investigation under the Ethics Acts, the Standards Commission considered that they were neither frivolous or vexatious.
  3. Mr Hynes appears to be labouring under a misapprehension as to the Standards Commission's findings and determinations; they were not "essentially the same" as the conclusion of the inquiry commissioned by the Council itself and conducted by a former Assistant County Manager of Mayo County Council. Prior to the investigation sitting, the Council employee Mr Kieran Lynn was served with a statement containing seven alleged contraventions of the Local Government Act and of the Ethics Acts. The Standards Commission found that Mr Lynn had breached the first five of these and decided not to proceed to consider the final two alleged contraventions, which concerned the same acts as in contravention 5. The Standards Commission also found that Mr Lynn had acted in bad faith in relation to the fifth contravention.
  4. The council's investigation did not find that Mr Lynn had failed to disclose any interests. By contrast, the Standards Commission concluded that he had failed to do so on four occasions. In relation to the fifth contravention, the council's investigation found that while Mr Lynn had not acted in accordance with the code of conduct for employees, it did not find any evidence of financial gain for Mr Lynn. The Standards Commission not only found a failure to have regard to the code, but also found that Mr Lynn contravened section 168 of the Local Government Act 2001 by using his official position in Mayo County Council, and the resources of the Council, for personal gain in that works were carried out to improve an access to his lands at Cushalogurt, Westport, County Mayo. The report states that the Commission is satisfied that the contravention was committed intentionally and was, in all the circumstances, a serious matter. This finding is not properly reflected in Mr Hynes' report.

I have sent Mr Hynes a copy of this letter and requested that he distribute it to the members and employees of Mayo County Council. I also intend to publish it on the Standards Commission's website.

The Standards Commission is available to provide observations on any proposals to amend the notice of motion procedure in local authorities or in relation to any proposals to put in place an explicit statutory complaints procedure dealing with alleged contraventions of Part 15 of the 2001 Act. I look forward to receiving any response you may have in relation to these matters.

Yours sincerely,

M.P. Smith