Educate and empower Councillors to exercise effective governance and compliance over the €5bn administered by local authorities annually; and to be public not private representatives.
By Fiona McLoughlin Healy.
The Report on the Role and Remuneration of Local Authority Elected Members written by Senior Counsel Sara Moorhead issued to Minister John Paul Phelan last year and recommended an increase of €8,000 on the current salary for Councillors, bringing it to €25,000 annually and dilution of the increase by a reduction in expenses.
Subsequent debate has focused on the remuneration element of the report, diverting attention away from a concerning finding of the report that:
“It is apparent from the results of the survey that the representational role including representing constituents in areas where the Councillor could have no real effect on outcome, remains the greatest barrier to the development of a robust and independent Councillor’s role”.
It further adumbrates “…While I appreciate that there needs to be some structural reform to assist Councillors in the carrying out of their duty and perhaps more devolution to Local Government, none of this can achieve anything if the Councillors themselves do not see their role in policy formulation, governance and representation on external bodies. This is illustrated by some stark statistics in the survey such as that only 5% of survey respondents felt that governance and compliance, including statutory functions, were a priority in their role as Councillors with Respondents indicating that it accounted for 12% of their overall work schedule”.
As an independent elected member in my second term in Kildare County Council I share Moorhead’s concerns.
During my first term as a Councillor I represented Kildare County Council on the board of an Education and Training Board (ETB) that was, and continues to be, the subject of a Garda investigation into issues that arose in relation to procurement and other matters.
I therefore share Moorhead’s disquiet that a minuscule 5% of respondents to the survey that informed the report, stated that governance and compliance were a priority.
Imagine if you conducted a review of the board of a PLC that had a budget of €5bn a year, and 95% of the board admitted that governance and compliance were not a priority for them?
Local Authorities around the country County and City Councils – between them administer over €5bn of public funds, annually. Imagine if you conducted a review of the board of a PLC that had a budget of €5bn a year, and 95% of the board admitted that governance and compliance were not a priority for them?
I don’t think many would invest in it. Because if governance is not a priority, you cannot safeguard against abuse, fraud, or waste.
A quick search of the Standards in Public Office Commission website yields examples of local authorities around the country that have had investigations into allegations of malpractice: Cavan, Donegal, Mayo, Meath, Monaghan, Sligo, Wicklow.
The Chief Executive of Kildare County Council has explained, on a number of occasions, that the substitution of the title County or City Manager in 2014 to that of Chief Executive reflected a new reality, a more accountable local authority, reporting and accountable to its board – its elected representatives. Yet, that is not the reality for many Councils and Councillors around the country.
And here’s where I diverge with Moorhead.
While acknowledging that “some structural reform is required to assist councillors perform their duties”, she lets the State off the hook by minimising the absolute necessity of that reform to facilitate and allow councillors to perform their governance function effectively, if at all.
That I have had to resort to Freedom of Information requests from the local authority of which I am a democratically elected member should serve to demonstrate how extraordinarily difficult and sixty-consuming it can be to get the information a Councillor may need to exercise due diligence, for example in the disposal of state-owned land or the approval of grant allocations.
The central reality is that most Councillors focus their attentions on reps for social housing, medical cards and other areas over which they ‘have no real effect on outcome’, according to Moorhead.
This may in part explain why the central reality is that most Councillors focus their attentions on reps for social housing, medical cards and other areas over which they ‘have no real effect on outcome’, according to Moorhead.
Representation on External Bodies
Once elected to their Council, Councillors collectively appoint each other to a range of external bodies – from local companies like LEADER partnerships to public bodies like the ETBs. They are often appointed with insufficient training or understanding of their roles as board members.
Take the Education and Training Boards as an example: Councillors across the country may be appointed as Chairs of ETBs – organisations with budgets similar to those of local authorities – irrespective of whether they have the appropriate qualifications, experience or training for the role.
Chairing a board of an organisation managing €100m plus budget and providing reassurance to the Minister for Education about the governance and operation of such an organisation, is an onerous task.
Yet, there is no requirement that the Chair be selected on the basis that they have the appropriate skills for the role.
In 2018 having failed to get a satisfactory response from the Chair of the KWETB, I sent the then Minister for Education a list of the breaches and potential breaches by the KWETB of the Department’s own Code of Governance for Education and Training Boards.
I provided evidence that secret meetings were being held by the board contrary to the Code; that both public and private meetings were relocated from the public chamber in the Council to more difficult and costly hotel venues, in the absence of the required agreement of the board. The Code required all ETB board meetings “to be held in public, except in exceptional circumstances” and only then when a rationale is provided for the public minutes.
The KWETB regularly held meetings in private while I was on the board and the current board continues to hold whole or parts of its meetings in private. I understand that some of the other 16 ETBs around the country also hold their meetings in private, contrary to the Code.
I made the Minister aware of the increasingly difficult experience I had on the board, getting answers to basic governance questions. I wrote informing the Minister Joe McHugh and his predecessor Richard Bruton, the Secretary General of the Department and others of the increasingly difficult experience I had getting answers to basic governance questions. I also queried the withholding of legal advice from the board and the €82,000 paid from public funds for ‘board legal advice’ that the board had not engaged and to which it did not have access at the time. My requests for appropriate oversight by the Minister and his Department were ignored. But there was then, as there continues to be, no consequences for the alleged breaches; and no concern at the level of Ministers or Secretaries General.
Moorhead bemoans lowly Councillors’ failure to exercise their governance role. But where is the incentive for Councillors to become a target for smear campaigns in the absence even of clear rules and ways of enforcing them? I know many are scandalised but reticent.
Contrary to Moorhead’s conclusion, structural reform is key to changing both the role of the Councillor and Councillors’ perceptions of their role. The two go hand in hand.
Structural Gaps – The Systemic Changes Required for Councillors to Exercise Their Governance Function Effectively
- Councillors should be entitled to substantive responses from staff including from the Chief Executive within an appropriate time-frame. In terms of measurement of Council performance, the Customer Relationship Management (CRM) systems referred to in the report are only as good as the protocols informing them. Councillors must have a key role in framing the protocols or reports will be used to skew results in the future regarding the performance and effectiveness of the local authority in dealing with issues. For example Councillors have complained in Kildare that the executive can decide when an issue is “closed” on the CRM system, whether the Councillor agrees that it has been closed satisfactorily or not. Transparent CRM protocols informing and prioritising responses to Councillors would free up time for local authority staff, as TDs and constituents would quickly come to realise that Councillors are the appropriate route for queries on Council-related functions. It would also free up TDs and Senators to focus on their role as national representatives and less on representations about potholes, playgrounds and public lights, over which they have no role or function. CRM systems, if used effectively, have the potential to shine a light on the dark corners of clientelism in local government where Councillors and TDs who don’t challenge chief executives at local or national level are rewarded with more favourable responses to project proposals, requests for information, site visits etc, than those who do.
- Appointment to an external body should be dependent on having passed a governance test – following appropriate training – that would demonstrate a basic understanding of the important rights and responsibilities of a Chair or board member.
- ouncillors should be given access to the minutes of the County and City Managers Association (CCMA) meetings. Discussions that influence and shape future policy and the allocation of resources across local authorities nationwide take place at meetings of the CCMA. Managers attending these meetings control budgets between them of over €5bn of public money and yet are not accountable even to the Dáil Public Accounts Committee. During my first term in Kildare County Council, I proposed that the Chief Executive would report to the Council from meetings of the CCMA. That motion attracted one of the most offensive ad hominem attacks I have experienced in the Council to date – an attack led, interestingly enough, not by the Executive but by more experienced and senior Councillors, one a former Minister. Why a request for reports from CCMA meetings attracted such a disproportionate response remains to be explained. Transparency International Ireland has similarly called for the minutes of the CCMA meetings to be made publicly accessible. Moorhead is silent on this potential game changer.
- Introduce risk reporting as a regular monthly item on the agenda for Council meetings. Effective and efficient administration of public funds requires skilled management and mitigation of all kinds of risks by local authorities. Failure to report for example, legal cases or threats of legal cases against the council, findings of maladministration or improper conduct, or the massive legal costs arising from cases, there can be zero consequences for any maladministration and little oversight of the actions required to mitigate the risk in the future.
- Introduce sanctions for local authorities that fail to request statutory annual reports from Councillors appointed to external bodies. Annual reports were not requested by Kildare County Council until I drew the relevant legislation to their attention in 2018. Until then, there was no formal feedback route from any of the external bodies to which Councillors were appointed which included the KWETB, but also the very powerful Eastern and Midland Regional Assembly to which a small number of Kildare Councillors were appointed and which triggered a controversial variation of the democratically agreed County Development Plan. Although a template for the annual Section 141 report was subsequently introduced by Kildare County Council, it requires minimal information. Further input at Department level is warranted to ensure the Section 141 reports are delivered and adequately serve the feedback purpose intended. Councillors should be notified annually of their requirement to submit to their Council a Section 141 report on the operation and activities of the external bodies to which they have been appointed. Although a statutory requirement , not all Councils request these reports. These reports were not requested by Kildare County Council before I raised the issue not in the Council but in the KWETB, in 2018.
- Introduce sanctions for Councils who fail or refuse to disclose annual reports and compliance by groups funded by the Council. By way of example, I have previously been denied access, by the executive of the Council, to the Annual Reports of the County Twinning Committee. I have had to resort to obtaining Company Registration Office documents to ascertain the role of the Council in a local Arts Centre having failed to elicit the information from a Council official at a Council meeting. It transpired that the Arts Centre was obliged to report to the Council annually under the Terms and Conditions of funding provided to it, by the Council.
- Make it mandatory for the Chair of Local Authorities’ Audit Committees to present the Annual Audit Committee Report in person to councillors. Reports are as good as the ability to question them. It is worth noting that the Internal Audit Unit in Councils report to the Chief Executive. The Audit Committee’s purpose is to report to the Councillors, not the Chief Executive.
- For similar reasons, the Local Government Auditor should present their Annual Audit Opinion and Annual Audit Report in person to councillors. In my experience, the Chief Executive, the Mayor and members of the Audit Committee excitedly welcome ‘unmodified Audit opinions’ – which simply mean that the figures the local authority have provided to the auditor are accurate – while ignoring serious concerns about procurement procedures, the holding of land banks, failure to raise purchase orders in a timely manner and most worryingly the statement in the LGA‘s recently published Audit Report on Kildare that ‘there is still no evidence to suggest that the councils asset register is either accurate or complete’. That startling statement by the LGA warranted robust enquiry of the executive at the presentation of the Annual Audit Report to Councillors at their plenary meeting on January 25th. Instead it was presented for ‘noting’ and and efforts to discuss the report were limited as the Mayor was “conscious of time”. It cannot be left to individual Councillors to ensure that items of such significance in the LGAs Annual Report are highlighted and given the attention they deserve.
- Pay-related transactions should be included in Councils’ annual reports. Part of the governance role is knowing and understanding where there may be conflicts of interest and then managing those conflicts of interest appropriately. If a member of staff is providing a service to the Council, it should be declared and made known to Councillors. Unlike company accounts, declarations of pay-related transactions are not currently required in Councils’ annual reports.
- The communications of external Chairs and external members of Council committees including Council Finance Committees and Council Audit Committees should be FOIable. I have personal experience of being unable to access information under FOI on the grounds that the external Chair of a Council committee was using a personal email address.
- Councillors should have access to independent governance advisors when necessary for their work as a member of their local authority and in relation to their roles on external bodies.
- Councillors need access to independent legal advice and representation when necessary and appropriate, to advise and protect them in the execution of their oversight and governance role. There is minimal discussion of this significant structural impediment in the Moorhead report. There is a staggering imbalance of power on the one hand between Councillor/s who need legal advice and/or legal representation in order to exercise their oversight and governance function, and a local authority or an ETB that has unlimited access to legal advice and representation, funded by the tax-payer. his undemocratic imbalance of power is illustrated by the cases taken and won by Councillors against Wicklow County Council. In at least one, the councillors whose court case had resulted from their attempts to protect public assets, were at risk of losing their homes, had the court found against them. Wicklow County Council, bore no such risk. ll these cases were taken at the Councillors’ personal expense and their bravery in taking on the might of the Council, in the public interest, is staggering. But is it right that Councillors take on such personal financial risk when exercising their duties as public representatives? The 1999 constitutional referendum on Local Government gave particular recognition to the democratic role of County Councillors to represent constituents. Councillors are hindered in exercising their constitutional right to represent constituents by the inequitable access to the Council’s law agents by the legal resources available to Councils. A case in point, I am currently weighing up the cost of taking a judicial review of a recent decision by the Council to dispose of land. In making that decision I must consider the impact on my family and on our personal finances if I pursue the case in the interests of my constituents.
- Clarify whether Whistleblowers protection comprehends Councillors; and ensure it does. I have received advice saying it does not since we are not ‘employees’ of the Council.
- Introduce webcasting of Council meetings. While there are clear benefits in transparency from webcasting of Council meetings as acknowledged by Moorhead, webcasting also empowers Councillors to hold local authorities to account. Despite webcasting finally being approved by Councillors in Kildare over 18 months ago following promises made during the local election campaign, it has yet to be implemented. And those against its introduction have paradoxically used the Moorhead Report as a further excuse to “wait and see” how it might be rolled out elsewhere.
Summary
Ineffective oversight of local authorities is the result of a system of barriers and obstacles designed to grind down even the most determined councillors.
Had Moorhead looked behind the answers she would have found that “only 5% of councillors who responded to the survey felt that governance and compliance… were a priority in their role as Councillors” because Councillors who are committed to exercising their oversight and governance role, often find themselves expending an inordinate amount of time obtaining the information necessary to ensure effective governance and compliance by their local authorities, potentially exposing themselves to massive financial risk while Ministers and Departments demonstrate little appetite for dealing with any governance lapses and failures.
Structural reform is an absolute necessity to empower Councillors to hold their local authorities to account. €5bn at stake annually, Moorhead is a definitive spur to meaningful reform of local government.
Fiona McLoughlin Healy is an independent Councillor in Kildare.
