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22 1995

ETHICS IN PUBLIC OFFICE ACT, 1995

PART V

The Commission

Establishment, membership and functions of Commission.

21. —(1) On the commencement of this section, there shall stand established a commission (which shall be known as the Public Offices Commission and is referred to in this Act as “the Commission”) to perform the functions conferred on it by this Act.

(2) The Commission shall consist of the following members:

(a) the Comptroller and Auditor General,

(b) the Ombudsman,

(c) the Chairman of Dáil Éireann,

(d) the Clerk of Dáil Éireann,

(e) the Clerk of Seanad Éireann.

(3) (a) Subject to paragraph (b), where a member of the Commission notifies the Minister that he or she is for any reason (other than the operation of subsection (4)) temporarily unable to act as such member or any of the offices aforesaid is vacant, the Minister shall appoint—

(i) in the case of the Comptroller and Auditor General, the Secretary and Director of Audit of the Office of the Comptroller and Auditor General,

(ii) in the case of the Ombudsman, the Director of the Office of the Ombudsman,

(iii) in the case of the Chairman of Dáil Éireann, the Deputy Chairman of Dáil Éireann,

(iv) in the case of the Clerk of Dáil Éireann, the Clerk Assistant of Dáil Éireann, and

(v) in the case of the Clerk of Seanad Éireann, the Clerk Assistant of Seanad Éireann,

to be a member of the Commission for the duration of such inability or vacancy.

(b) If a person falling, pursuant to paragraph (a), to be appointed to be a member of the Commission cannot be so appointed or the Commission consider that it would not be appropriate so to appoint that person, the Minister shall appoint such other person as the Commission may nominate for the purpose to be such a member for the duration of the inability or vacancy concerned.

(c) Upon the appointment of a person pursuant to paragraph (a) or (b) to be a member of the Commission for the duration of an inability, the member of the Commission who is temporarily unable to act as such member shall be deemed for such duration not to be a member of the Commission.

(d) If a member of the Commission ceases to hold the office by virtue of which he or she became a member of the Commission, he or she shall thereupon cease to be a member of the Commission.

(4) (a) The Comptroller and Auditor General and the Secretary and Director of Audit of the Office of the Comptroller and Auditor General shall not take part in any proceedings of the Commission relating to the Comptroller and Auditor General or a member of the staff of the Office of the Comptroller and Auditor General.

(b) The Ombudsman and the Director of the Office of the Ombudsman shall not take part in any proceedings of the Commission relating to the Ombudsman or a member of the staff of the Office of the Ombudsman.

(c) The Chairman of Dáil Éireann, the Deputy Chairman of Dáil Éireann, the Clerk of Dáil Éireann, the Clerk Assistant of Dáil Éireann, the Clerk of Seanad Éireann and the Clerk Assistant of Seanad Éireann shall not take part in any proceedings of the Commission relating to the Chairman or Deputy Chairman of either House or to a member of the staff of the Houses.

(d) Where a member of the Commission is, by virtue of paragraph (a), (b) or (c) unable to take part in proceedings of the Commission, subsection (3) shall not apply in relation to such inability, and the Minister shall appoint such person as he or she may determine to be a member of the Commission for the purpose of taking part in those proceedings but for no other purpose and the first-mentioned member shall be deemed, in relation to those proceedings, not to be a member of the Commission.

(5) The quorum for a meeting of the Commission shall be three or such other number (being not less than three) as may be determined from time to time by the Commission.

(6) (a) The Commission shall appoint one of its members to be chairman of the Commission and the member so appointed shall hold the office of chairman for such period as may be determined by the Commission.

(b) If the chairman of the Commission ceases during his or her term of office as such chairman to be a member of the Commission, he or she shall also cease to be the chairman of the Commission.

(7) At a meeting of the Commission—

(a) the chairman of the Commission shall, if present, be chairman of the meeting,

(b) if and for so long as the chairman of the Commission is not present or if the office of chairman is vacant, the members of the Commission who are present shall choose one of their number to be chairman of the meeting.

(8) A decision at a meeting of the Commission (other than a meeting held for the purposes of an investigation under section 23 ) may be that of a majority of the members present and voting on the question and, in the case of an equal division of votes, the chairman of the meeting shall have a second or casting vote.

(9) The Commission may act (otherwise than in relation to an investigation under section 23 ) notwithstanding one or more vacancies among its members.

(10) Such functions of the Commission (other than functions under section 23 ) as may be specified by it may be performed, under the supervision and subject to the general direction of the Commission, by members of the staff of the Commission duly authorised in that behalf by the Commission.

(11) Subject to the provisions of this Act, the Commission shall determine, by standing orders or otherwise, the procedure and business of the Commission.

(12) The Minister shall make available to the Commission such reasonable facilities and services (including clerical, secretarial and executive services) as the Minister, after consultation with the Commission, may determine.

(13) Subject to such conditions as the Minister may determine, there shall be paid to the Commission out of moneys provided by the Oireachtas such amounts as the Minister may, after consultation with the Commission, determine in respect of the reasonable expenses of the Commission and its members.

Complaints to Commission.

22. —(1) A person (other than a member) who considers that—

(a) a person may have contravened Part II , III or IV at a time when he or she was an office holder, or

(b) that a person who is an office holder may have contravened Part II before becoming an office holder,

may make a complaint in writing in relation to the matter to the Clerk and, subject to subsection (2), the Clerk shall refer the matter to the Commission and shall furnish a copy of the complaint to the Commission.

(2) The Clerk shall consider a complaint under subsection (1) and, if the Clerk is of opinion that it is frivolous or vexatious, he or she—

(a) shall not refer it to the Commission, and

(b) shall prepare a statement in writing of the reasons for his or her opinion and furnish it to—

(i) the person who made the complaint,

(ii) the person concerned, and

(iii) the Commission.

(3) A member who considers that—

(a) a person may have contravened Part IV ,

(b) a person may have contravened Part II , III or IV at a time when he or she was an office holder, or

(c) that a person who is an office holder may have contravened Part II before becoming an office holder,

may make a complaint in writing in relation to the matter to the Commission.

(4) (a) Where the Minister considers that a person, other than an office holder, may have contravened Part IV , he or she may make a complaint in writing in relation to the matter to the Commission.

(b) (i) Where a Minister of the Government considers that a person to whom this subparagraph applies may have contravened Part IV , he or she may, with the consent of the Minister, make a complaint in writing in relation to the matter to the Commission.

(ii) Subparagraph (i) applies to the following persons:

(I) a person who occupies or occupied a designated position in a Department of State or office of which the Minister of the Government by whom the complaint concerned is made has charge,

(II) a person who holds or held a designated directorship of, or occupies or occupied a designated position in, a public body specified in subparagraphs (8) to (12) of paragraph 1 of the First Schedule or standing prescribed for the time being under subparagraph (13) of the said paragraph 1 in relation to which functions stand conferred on the Minister of the Government by whom the complaint concerned is made, and

(III) a person who is or was a special adviser assigned to the Minister of the Government by whom the complaint concerned is made or to a Minister of State at the Department of State administered by that Minister of the Government.

(c) Where a public body specified in subparagraphs (8) to (12) of the said paragraph 1 or standing prescribed for the time being under subparagraph (13) of the said paragraph 1 considers that a person who—

(i) holds or held a designated directorship of the body, or

(ii) occupies or occupied a designated position in the body,

may have contravened Part IV , it may make a complaint in writing in relation to the matter to the Commission.

(d) Where the appropriate authority (within the meaning of the Civil Service Regulation Act, 1956, but excluding a Minister of the Government) in relation to a civil servant (within the meaning aforesaid) considers that the civil servant may have contravened Part IV , the authority may make a complaint in writing in relation to the matter to the Commission.

Investigations by Commission.

23. —(1) Subject to subsection (2), where—

(a) a complaint is referred or made to the Commission under section 22 , or

(b) the Commission considers in the case of—

(i) a person who may have contravened Part II , III or IV at a time when he or she was an office holder,

(ii) a person who is an office holder and who may have contravened Part II before becoming an office holder, or

(iii) a person to whom section 22 (4) (b) (i) applies and who may have contravened Part IV

that it is appropriate to do so, it shall carry out an investigation to determine, whether, as may be appropriate—

(I) the person referred to in subparagraph (i) contravened Part II , III or IV at a time when he or she was an office holder,

(II) the person referred to in subparagraph (ii) contravened Part II before becoming an office holder, or

(III) the person referred to in subparagraph (iii) contravened Part IV .

(2) Before the Commission decides whether to carry out under subsection (1) an investigation of a matter that—

(a) relates to a person who holds or held a designated directorship of, or occupies or occupied a designated position in, a public body, and

(b) was not the subject of a complaint referred or made to it under section 22 ,

the Commission shall—

(i) consult with any Minister of the Government on whom a function in relation to the body stands conferred, and

(ii) give to any such Minister of the Government as aforesaid and to the body a statement in writing of the reasons why it considers it appropriate that the investigation should be carried out,

and it shall decide not to carry out the investigation unless, having considered any representations made to it by that Minister of the Government or the body, it is satisfied that it is appropriate to carry it out and that an adequate investigation cannot or will not be carried out by or on behalf of that Minister of the Government or the body or any other authority.

(3) Where the Commission, either during or at the conclusion of an investigation under this section, becomes of opinion that the person the subject of the investigation has not contravened the provision of this Act to which the investigation relates but may have contravened another provision of Part II , III or IV , it may carry out an investigation under this section to determine whether the person has contravened that other provision, but subsection (2) shall not apply in relation to the investigation.

Reports by Commission.

24. —(1) Subject to subsection (2) and section 31 , where the Commission carries out an investigation under section 23 , it shall prepare a report in writing of the result of the investigation and shall furnish a copy of the report to—

(a) the person the subject of the investigation,

(b) if the investigation followed a complaint under section 22 , the person who made the complaint, and

(c) (i) in case the person the subject of the investigation is or was an office holder and the Commission has determined that he or she has contravened Part II , III or IV , the Committee, and

(ii) in any other case—

(I) the Minister, or

(II) if, at the time of the alleged contravention concerned, the person occupied a position in a Department of State or office administered by a Minister of the Government other than the Minister, that Minister of the Government.

(2) Where the Commission, either during or at the conclusion of an investigation under section 23 , is of opinion that the person the subject of the investigation may have committed an offence relating to the performance of his or her functions as an office holder, a holder of a designated directorship of, or occupier of a designated position in, a public body or special adviser, as the case may be or that the person may have contravened Part II before becoming an office holder—

(a) it shall prepare a report in writing in relation to the matter and furnish it together with any relevant document or other thing in its possession to the Director of Public Prosecutions who shall notify the Commission as to whether he or she has taken proceedings for an offence in respect of any matter mentioned in the report or has decided not to take any such proceedings and of the final outcome of any such proceedings (including any appeal, whether by way of case stated or otherwise, rehearing or retrial), and

(b) it shall add to its report under subsection (1) a copy of its report under paragraph (a) and a statement of the notification or notifications aforesaid.

(3) A report under subsection (1) shall set out the findings of the Commission together with its determinations in relation to the following matters, namely—

(a) whether there has been a contravention of Part II , III or IV by the person concerned and whether the contravention is continuing,

(b) in case the determination is that there has not been a contravention of Part II , III or IV , by the person, whether the Commission is of opinion that the complaint was frivolous or vexatious or that there were no reasonable grounds for it, and

(c) in case the determination is that there has been a contravention of Part II , III or IV by the person—

(i) if the determination is that the contravention is continuing, the steps required to be taken by him or her to secure compliance by him or her with Part II , III or IV , as the case may be, and the period of time within which such steps should be taken,

(ii) whether the contravention was committed inadvertently, negligently, recklessly or intentionally,

(iii) whether the contravention was, in all the circumstances, a serious or a minor matter, and

(iv) whether the person acted in good faith and in the belief that his or her action was in accordance with guidelines published or advice given in writing by a Committee under section 12 or the Commission under section 25 ,

and may refer to such other matters (if any) as the Commission considers appropriate.

(4) Where at any time a report under subsection (1) is furnished to a Committee, the Committee shall cause a copy of the report to be laid before the House concerned.

(5) Where a report under subsection (1) is furnished to a Minister of the Government and the report includes determinations that there has been a contravention of Part IV and that the contravention was a serious matter, he or she shall cause a copy of the report to be laid before each House.

(6) Where the Commission—

(a) adjourns or postpones proceedings in relation to an investigation under section 23 , or

(b) during such an investigation, furnishes a report to the Director of Public Prosecutions under subsection (2) (a) and the Director of Public Prosecutions notifies the Commission under subsection (2) (a) that he or she has taken proceedings for an offence in respect of a matter mentioned in the report,

the Commission may, if it considers it appropriate to do so, prepare an interim report in writing in relation to the investigation and furnish copies thereof to such of the persons specified in subsection (1) as it thinks fit.

Guidelines and advice from Commission.

25. —(1) The Commission—

(a) shall, after consultation with the Committees, from time to time draw up and publish to persons (other than members who are not office holders) to whom a provision of Part II , III or IV applies guidelines concerning the steps to be taken by such persons to ensure compliance by them with this Act generally and, in particular, with the provisions of those Parts, and

(b) may, at the request of a person (other than a member who is not an office holder) to whom a provision of Part II , III or IV applies, give advice to the person in relation to any provision of this Act or as to the application, in any particular case, of any such provision.

(2) When a request is made under subsection (1) (b) in relation to a particular case, the provision concerned of Part II , III or IV shall not, as respects the person who made the request, apply in relation to that case during the period from the making of the request to the time when advice is given by the Commission in relation to the case or it declines to give such advice.

(3) The Commission shall, within 21 days of the receipt by it of a request for advice under subsection (1) (b), furnish the advice to the person concerned or notify him or her of its decision to decline to do so.

(4) A person shall act in accordance with guidelines or advice published or given to the person under this section unless, by so doing, the act concerned would constitute a contravention of another provision of this Act.

Award of costs by Commission.

26. —(1) (a) Where, following an investigation by the Commission under section 23 of a complaint referred or made to it under section 22 (other than subsection (4)), the Commission determines that the complaint was frivolous or vexatious or that there has not been a contravention of Part II , III or IV and that there were no reasonable grounds for the complaint, it may order that such amounts (not exceeding £1,500) as it considers appropriate, having regard to all the circumstances, in respect of the reasonable costs and expenses incurred by any person before it (including costs and expenses incurred by such a person in respect of legal representation) in relation to the investigation shall be paid to that person by the person who made the complaint.

(b) Where, in relation to an investigation under section 23 , amounts are ordered to be paid under paragraph (a) to more than one person, the aggregate of those amounts shall not exceed £1,500.

(2) For the purposes of subsection (1), the Commission may measure the costs and expenses aforesaid.

(3) Any costs or expenses ordered by the Commission under subsection (1) to be paid by a person may be recovered from that person by the person to whom they are ordered to be paid as a simple contract debt in any court of competent jurisdiction.

Annual and special reports by Commission.

27. —(1) The Commission—

(a) shall, not later than 6 months after the end of each year, prepare a report on its activities in that year, and

(b) may prepare such other reports for the Minister as it considers appropriate.

(2) (a) The Commission shall furnish a copy of a report under subsection (1) (a) to the Minister not later than 6 months after the end of the year to which it relates and the Minister shall, not later than two months after the receipt of the report, cause a copy thereof to be laid before each House.

(b) The Minister may, if he or she considers it appropriate to do so, cause a copy of a report under subsection (1) (b) to be laid before each House.

(3) In this section “report” does not include a report under section 24 .