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LOCAL GOVERNMENT ACT, 2001
Consequential Provisions on Failure to Perform Functions
Definitions (Part 21).
215. —(1) In this Part—
“commissioner” means a person appointed as such by the Minister under section 218 ;
“new election” has the meaning given by section 217 (1)(a);
“removal period” has the meaning given by section 217 (1)(e);
“section 10A” means section 10A (inserted by section 44 of the Local Government Act, 1994 ) of the City and County Management (Amendment) Act, 1955 , as continued by section 113 (2) of this Act.
(2) In this Part every reference to a removal from office shall be read as a reference to a removal from office under section 216 .
Failure to perform functions, etc.
216. —(1) The Minister may be order remove from office the members of a local authority if and whenever—
(a) the Minister, after holding a public local inquiry into the performance by a local authority of its functions, is satisfied that such functions are not being duly and effectually performed, or
(b) a local authority refuses or neglects to comply with a judgement, order, or decree of any court, or
(c) a local authority fails to comply with a requirement made by notification under subsection (1) of section 10A, within 21 days after the date of notification, or
(d) a local authority in the circumstances set out in subsection (6) of section 10A, adopts a revised estimate of expenses which is, in accordance with that section, insufficient, or
(e) a local authority refuses or wilfully neglects to comply with any other express requirement which is imposed on it by or under any enactment including this Act, or
(f) the members of a local authority are less in number than the quorum for meetings of such local authority.
(2) (a) Where the members of a local authority are removed from office under this section, every person who immediately before the removal was a member of a linked body within the meaning of section 220 or of any other body and in either case by virtue of being nominated, elected or appointed by such local authority or by virtue of being the Cathaoirleach or by holding any other office or position relating to membership of such authority, shall cease also to be a member of the linked body or other body concerned.
(b) Section 220 applies, as appropriate, to the linked body concerned.
(3) The removal from office of the members of a local authority does not affect or in any way prejudice the continuity of the existence of that local authority as a corporate body by the title appropriate to it under this Act.
(4) An order under subsection (1) may include all such things as the Minister considers necessary or expedient to enable a local authority whose members are removed from office to function duly and effectually and generally to enable this Part to have full force and effect.
(5) Without prejudice to section 20 of the Interpretation Act, 1937 , the reference in sections 16 and 17 of the Local Elections (Petitions and Disqualifications) Act, 1974 , to Part IV of the Local Government Act, 1941 , shall be read as a reference to this Part.
Holding of new election after removal of members.
217. —(1) (a) The Minister may, by order, subject to paragraph (b), fix a day for the holding of an election (in this Part referred to as a “new election”) of members of any local authority of which the members have been removed from office and such election shall be held on that day.
(b) A new election shall not be fixed for a day which is within 12 months of the period within which the next local elections fall to be held in accordance with section 26 .
(c) A direct election under Part 5 shall, where relevant, be held in conjunction with a new election under paragraph (a).
(d) Where a day for the holding of a new election is not fixed under this subsection, then an election of the members of the local authority concerned shall be held on the day of the next local elections and such election shall for the purposes of this Part be deemed to be a new election.
(e) The period between the removal of members from office and the day of coming into office of the members elected at a new election is referred to in this Part as the removal period.
(2) The Minister may by order make such provision as may be necessary to provide for the coming into office of persons elected at a new election to which subsection (1)(d) does not apply; including provision for the annual meeting to be held following their coming into office, the business of such meeting and related matters.
(3) Where a new election has been held in accordance with this Part the term of office of members elected at the new election shall expire to coincide with the next ordinary day of retirement of members of local authorities as referred to in section 17 .
Appointment of commissioners, etc.
218. —(1) For the purposes of enabling a local authority whose members have been removed from office to function during the removal period, the Minister shall from time to time appoint any one or more persons to be the commissioner or commissioners for any such local authority.
(2) For the purposes of subsection (1), the Minister may—
(a) remove any commissioner for a local authority appointed under this section and appoint another person to be commissioner for such local authority in his or her place,
(b) where there are one or more commissioners appointed under this section for a local authority, appoint one or more persons to be additional commissioners for such local authority,
(c) where there are 2 or more commissioners appointed under this section for a local authority, reduce the number of such commissioners and for that purpose remove one or more of such commissioners,
(d) provide for a deputy to exercise the functions of a commissioners who by reason of ill-health or otherwise is absent, and
(e) where there are 2 or more commissioners for a local authority, provide generally or as regards particular matters for the acting of such commissioners individually, collectively or by a majority.
(3) The Minister may fix the tenure of office of any commissioner.
(4) The Minister may direct the payment of remuneration or allowances for expenses to any commissioner and may fix its amount, and such remuneration or allowances as so fixed shall be paid out of revenues of the relevant local authority as part of its general expenses.
Exercise of functions by commissioners.
219. —(1) (a) Subject to subsection (3), during the removal period every function which is a reserved function of such local authority or a function to be exercised by the Cathaoirleach shall be exercised or performed by the commissioner or commissioners for such local authority.
(b) References in paragraph (a) to functions includes every permissive power to appoint a committee.
(2) During the removal period any enactment restricting the membership of a committee in whole or in part to members of the local authority concerned shall stand suspended.
(3) No commissioner or commissioners shall by virtue of being a commissioner or commissioners—
(a) nominate a candidate for election to the office of President,
(b) make nominations or vote in elections for Seanad Éireann,
(c) apply for an alteration of the number of members of the local authority under section 22 , or
(d) exercise such other functions of a local authority as may be prescribed by regulations made by the Minister.
220. —(1) In this section—
“the appropriate Minister” means the Minister of the Government on whom functions stand conferred in relation to the linked body in question;
“linked body” means a health board established under the Health Act, 1970 , the Eastern Regional Health Authority, an Area Health Board established under the Health (Eastern Regional Health Authority) Act, 1999 , a vocational education committee, a school attendance committee, a harbour board, a joint body and any other body—
(a) which is required by law to be composed wholly or partly of persons nominated, elected or appointed by a local authority or by 2 or more local authorities, or
(b) which is required by law to include one or more persons, who hold membership of such linked body by virtue of being Cathaoirleach or by holding any other office or position relating to membership of a local authority.
(2) Where the members of a local authority are removed from office under this Part, the Minister may, after consultation with the appropriate Minister, make an order under this section in relation to any linked body affected by such removal in so far as the Minister thinks necessary or expedient for securing that the body concerned shall function notwithstanding such removal and, in particular, such order may provide—
(a) where the linked body concerned is required by law to be composed wholly of persons nominated, elected or appointed by the local authority concerned, either—
(i) for the transfer of the functions of that linked body to the commissioner or commissioners for that local authority and for the exercise and performance of such functions directly by that commissioners or those commissioners, or
(ii) for such provision as he or she thinks necessary or expedient for the appointment of the members of that linked body, including—
(I) the appointment of particular persons to be members, and
(II) reducing the number of the members and the quorum of that linked body,
(b) where the linked body concerned is required by law to be composed in part only of persons nominated, elected or appointed by the local authority concerned, for such provision as he or she thinks proper for filling all or any of those places in the membership of that linked body which are required by law to be filled by persons nominated, elected or appointed by such local authority, including—
(i) appointing a particular person or persons to fill such places, and
(ii) reducing the number of such places and, in consequence of such reduction, reducing the total number of members and the quorum of such body.
(3) During the removal period any enactment restricting the membership of a linked body in whole or in part to members of the local authority concerned shall stand suspended.
(4) The continuity of the existence of a linked body as a corporate body shall not be affected by the exercise of the power conferred on the Minister under this Part.