Standards in Public Office

Commission

The Standards in Public Office Act 2001 establishes the Standards in Public Office Commission.  It has power in relation to acts and omissions of persons in public life. Complaints may concern alleged acts or omissions which are inconsistent with the proper performance of the relevant functions.

The intention was for the Commission to be chaired by a judge or former judge with four other ex officio (by virtue of office) members, the clerks of the Dáil and Seanad, the Controller and Auditor-General and the Ombudsman.  It assumes the functions of the Public Offices Commission under the Ethics in Public Office Act 1995 and the Electoral Act 1997.

The membership of the Commission is as set out above.  The chairperson is appointed by the President on the advice of the government, following  resolution of both houses of the Oireachtas.  The period of appointment is six years.

References to the Public Office Commission and to the chairman of that body under the Ethics in Public Office Act are to be read as references to the Commission.  Accordingly,  the Commission takes on the role of the Public Offices Commission.  The Minister for Finance may make regulations, where necessary and expedient to allow the performance by the Commission of its functions.

Codes & Requirements

The legislation provides for the development of codes of conduct for ministers and officeholders, members of the Oireachtas and employees of public bodies. The purpose of the code is to provide guidance in the performance of functions.

They are to detail standards of probity, conduct and integrity in the performance of duty.  They are to be incorporated in the officer’s terms of employment (where applicable) or otherwise as contractual obligations.

There are requirements for tax clearance certificates for senior public servants and judges.  They must be provided within nine months of the appointment. They must make a statutory declaration in relation to their tax affairs. The legislation increases the general penalties under the Statutory Declarations Act 1938 for this purpose.

If a person fails to furnish a tax clearance certificate or declaration, the Commission is to draw up a report and furnish it to the Houses of the Oireachtas, committees, ministers, a public body or chief justice as appropriate to the officeholder concerned.

Sanctions may be taken against public servants, including suspension without pay.  The committees may be empowered to recommend to the relevant houses that penalties be imposed on members of the Oireachtas who do not comply.

The legislation amended the provisions in relation to declarations of interest and donations under the Electoral Act 1997.

Oireachtas Disclosure of Interests

A number of amendments were made in 2001 to the Ethics in Public Office Act.  Where a person intends to speak as a member of the Oireachtas or vote on a matter in which might have material interest and the person seeks the advice of the committee as to how he stands in relation to the matter, the person must declare that he has sought such advice and when the advice is received later, it must be laid before the Houses of the Oireachtas.

Prior to that, once a person had sought advice, it was possible for him to participate in a debate or vote without any further obligation after the advice is received.

The definition of a “material interest” is expanded to ensure that in considering whether a person has a “material interest” the avoidance of a loss or penalty can be taken in the same way as a benefit.

Complaints

Complaints may be made in writing or such other form as may be designated.  They must relate to matters of significant public importance in relation to an act or omission of an officeholder. The Commission is to determine what constitutes a matter of significant public importance in this context.

Where it considers it appropriate, the Commission may deem a matter to be of significant public importance if it relates to a benefit or a potential benefit alleged to be received by a relevant person or someone connected in excess of €12,700.

The Commission, upon receipt of a complaint about which it is satisfied that it is of significant public importance, may request a preliminary investigation to be undertaken by an enquiry officer.  If it is not of sufficient gravity to warrant an investigation, it may be referred to a committee of the Houses of the Oireachtas, minister or public body as appropriate to the person who is the subject to the complaint.

The enquiry officer seeks statements from the complainant and the person affected, about the complaint.  They may be interviewed, and a report may be made to the Commission.  He may require the production of documents, and persons concerned are to respond or produce documents.

The Commission can investigate complaints made under the 1995 Act. This may include complaints relating to Oireachtas members, which the relevant Oireachtas committee decides to refer to the Commission.

Codes of Conduct

Codes of conduct can be drawn up by the government in the case of officeholders and by the Minister for Finance in the case of public servants generally. In the case of Oireachtas members,  the Commission may draw up a code which may be applied to members of the Oireachtas only by resolution of the House. Codes may be revoked or amended.

Codes of conduct deal with standards of conduct and integrity. Persons to whom they relate must have regard to the codes in the performance of their duties. The codes may be admitted as evidence in court proceedings before tribunals or the Commission where it is considered relevant to the issue.

Complaints

The provisions for making complaints to the Clerk are amended. When considering whether a complaint is vexatious, the Clerk will consider whether there is evidence to establish a prima facie case.

The committee may investigate breaches of the Act in the same way as they investigate breaches of the Ethics in Public Office Act. The committees are to report back to the House.  Where a committee finds in the course of its investigations that an offence may have been committed, it is to report the matter to the DPP.

Guidelines and advice may be issued by a committee.  The guidelines continue until a new committee is established after the dissolution of the Houses.

Where there is sufficient reason to do so, the committee or the Commission may arrange for the examination of a person in any place in or outside the State by a person appointed for that purpose.  This is subject to High Court powers and rules of evidence.  Provision is made for the privileges and immunities of witnesses and of enquiry officers and persons conducting the examination on behalf of the Commission.

Investigation

A person giving evidence before the Commission may not refuse to produce documents or refuse to answer questions on the grounds that he may incriminate himself.  However, their statements or omissions are not generally admissible in evidence in criminal or civil proceedings.

It is an offence to obstruct the Commission or the Committee or any person acting for them.  It is subject to summary conviction to a fine up to €12,170 or imprisonment of six months or on indictment o an indictment fine of €25,400  or imprisonment up to three years or both.

A person may be required to discover documents relevant to the functions of the Committee or Commission on the same terms and in accordance with the High Court rules on discovery.  It is an offence to fail to preserve a document or information relevant to an investigation.

Tax Clearance

The Clerks of the Dáil and Seanad are to consult with the Commission to ensure that the various forms to be issued to members of the Oireachtas under Ethics in Public Office Legislation and Electoral Act are issued in a timely and coordinated manner.

There is provision for tax clearance certificates and statutory declarations in relation to tax compliance for members for the Oireachtas and judges. The statutory declaration must confirm that the person is to the best of his knowledge in compliance with the Taxes Acts.

The tax clearance certificate must be issued within nine months before or after the election.  Where it has been applied for but not issued, an application statement can be submitted as proof that the certificate has been applied for.  Contravention may be investigated by the Commission and a report may be made on its findings to the relevant committee.

Where a member of the Oireachtas breaches the obligation, the committee may initiate a motion and resolution noting the report censuring the officeholder or member or suspending the officeholder or member for up to 30 days or, in some cases, until the contravention is rectified.

In the case of judicial officeholders, the tax clearance certificate must be provided within nine months of taking a position together with the statutory declaration.  Where there is a contravention, the Commission may investigate the matter and draw up a report to be furnished to the Chief Justice, the   Minister for Justice or to the relevant public body in cases other than judges.

Non-Compliance TCC

Where a person has not complied with the above obligations when due, the obligation continues to apply.  Where a member of the Oireachtas or holder of a judicial post has not produced a certificate or a statutory declaration in the given year, it is to be noted in the Commission’s annual report.

The relevant committee, the minister for Justice and Chief Justice, as the case may be, are to be informed.  The Commission is subsequently to inform them when the person concerned has complied with the requirements.

Similar provisions apply to senior public servants who are not in compliance.  The head of the relevant public body is notified.

Tax clearance certificate will be issued for a person who is in compliance with his obligations under the Taxes Act.  It confirms that at the date of issue, the relevant obligations have been complied with.  Where a person or a partnership of which the person is a member is not in compliance, the certificate is not issued.

Where a person has sought a tax clearance certificate and the matter is the subject of an appeal, the person is furnished with an application statement to the effect that he has applied for a tax clearance cert and the final decision is pending.

The maximum penalty under the Statutory Declarations Act 1938 is increased to €2,540 and a prison sentence of up to six months.