Introduction to response to Moorhead’s concerns re governance

One of the striking findings of the Moorhead report is 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.

Moorhead SC goes on to state that,

“…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”

In fact, many councillors share her concerns about their role in policy formulation and in particular around their governance function and their role on external bodies, but for different reasons. I categorically reject her conclusion that structural reform would not be sufficient to change the focus of councillors’ work. One of the reasons many councillors don’t see themselves as having a more substantial governance role is because at every turn efforts to exercise their governance role is met with obstacles, silence or even mis-information. The barriers to exercising their governance role are numerous, some of which I address under the heading below ‘ Structural Gaps -the system changes required for councillors to effectively exercise their governance function’. Structural reform is not only desirable, it is an absolute necessity if councillors are to be permitted to exercise their governance function.

As a councillor with a particular interest in the governance aspect of our role I can attest to the lack of supports, the lack of understanding and the lack of training around councillors’ oversight and governance role. I can also attest to the structural impediments to councillors carrying out their governance function.

Cllrs are appointed to a range of external bodies from private companies eg LEADER partnership companies to public bodies eg an Education and Training Boards. They are often appointed with insufficient training or testing of their understanding of their roles as board members on those bodies. For example Councillors across the country are appointed as Chairs of Education and Training Boards, organisations with budgets similar to those of local authorities. Chairing these boards and providing reassurance to the Minister for Education around the governance and operation of such an organisation is an onerous one. And there is no requirement that the Chair be selected on the basis that they have the appropriate skillset to Chair the board. Nor is there the requirement to complete training/basic testing before taking up the position of Chair. This is just one example but an important one challenging Moorhead’s contention that structural reform is not key.

Structual reform IS key to changing both the role of the councillor and councillors’ perception of their role. The two go hand in hand. Moorhead’s conclusion that there is almost no point introducing structural reform is both flawed and dangerous. It provides an easy ‘get out’ for the state which should be providing the appropriate supports, training and services to assist councillors in their governance role.

Why bemoan the lack of sufficient focus on governance and on councillors’ roles on external bodies while at the same absolving the state of its responsibility to enhance their role and performance through structural reform, education, training and supports in these areas.

From personal experience I can attest to the structural gaps that exist which undermine and act as obstacles to councillors being permitted to effectively exercise their governance role . My response is informed by my experience in Kildare County Council, as a board member of anEducation and Training Board which is currently the subject of an investigation by the Garda Economic Crime Bureau, as a board member of school boards of management to which I was appointed by the ETB and as a board member of a LEADER Partnership.

Structural Gaps – the system changes required for councillors to effectively exercise their governance function

1) Councillors must be entitled to sufficient responses from staff including from the Chief Executive within an appropriate time-frame. In terms of measurement of council performance, 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 informing CRM systems. The alternative is that reports may be used to skew results re the performance and effectiveness of local authority staff in dealing with queries. For example councillors have complained in Kildare that the executive may decide when an issue is ‘closed’ on the CRM system, whether the councillor agrees that it has been closed satisfactorily or not.

– The protocols informing local authority CRM systems could also deal effectively and simply with the time wasted by a system that currently has no bar to TD’s carrying out the same role as Councillors, as highlighted by Moorhead.Protocols for responses from council staff can and should prioritise replies to councillors as officials of their local council. Open and transparent protocols informing and prioritising responses to councillors would free up a significant amount of time for local authority staff as TD’s and constituents would quickly come to realise that councillors are the appropriate route for a quicker response on council related functions. Clarifying in writing a local authorities commitment to its councillors over and above local TDs would free up TDs to focus on their role as national representatives and less on making representations around potholes and public lights over which they have no function.

2) Councillors should be provided withcustomised training (as opposed to information sessions), to help them understand and execute their oversight role and governance of their local authorities. Moorhead refers to training. However, I would go further to recommend that training can only be deemed to be training if there is basictesting on the training provided. Testing should include important ‘ what if’ scenarios that councillors may come across in the course of their work eg around lobbying, county development plans, disclosures or allegations of wrongdoing etc. Appointment to an external body or remaining on an external body should require evidence of having passed the test demonstrating a basic knowledge of the important rights and responsibilities attaching to a councillor’s role on these bodies.

3) Councillors must be given access to the minutes of the County and City Managers Association meetings (CCMA). Discussions relating to and which impact on each local authority take place at these meetings including most recently the Regional Economic and Spatial Strategy. Managers at these meetings are managing budgets between them of over €4 billion of public money. Transparency International Ireland has also called for the minutes of the CCMA meetings to be made accessible publicly. There can be no governance or accountability in the absence of transparency. Moorhead is silent on this significant structural gap in councillors’ ability to exercise their governance function.

4) Risk reporting should be introduced as a regular monthly item on the agenda for council meetings.

5) Introduce sanctions for local authorities that fail to comply with legislation requiring reports to be provided to the council. For example, all councillors should be notified annually of their requirement to submit to the council for report, their 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 have been asking for those reports.

6) Introduce a sanction for councils who fail to demonstrate to councillors compliance with legislation or with terms and conditions of the council’s own funding agreements requiring groups to report to council eg Twinning committees ( statutory reporting requirement) and other examples could be Town Halls, Arts centres etc ( arising from terms and conditions of council funding )

7) 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 reports to the CE. The Audit Committeereports to the councillors and not the CE. I have had personal experience of my right to put questions to the Chair of the Audit Committee being challenged. All audits/reports completed by the Audit Committee should be available to councillors.

8) For similar reasons, the Local Government Auditor should report in person to councillors and be available for queries on her/his annual audit of the local authority in question.

9) Pay-related transactions should be included on 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. If a member of staff is benefitting from providing a service to the council, it should be declared and obvious to councillors. Pay-related transactions are not currently required on council annual reports.

10) Communications with external Chairs and external members of council committees including but not limited to councils’ Finance Committees and councils’ Audit Committees should be FOIable. Again I have personal experience of communications not being FOIable for no other reason than that the Chair was using a personal email address in his role as Chair. If the use of personal email addressess hinders FOI or Data Protection then council emails should be provided to external members before the role is taken up.

11) Councillors should have access to independent governance experts to advise in relation to their oversight and governance role as a member of their local authority and in relation to their roles on external bodies. Governance advice should be independent of the executive. Some thought needs to be given to how this might be provided independently.

12) Councillors must have access to independent legal advice and representation if required to advise and protect them in the execution of their oversight and governance role. There is minimal discussion of this important structural impediment in the Moorhead report. The signifcant imbalance of power between any councillor/s who needs legal advice and representation to exercise their oversight and governance function appropriately on the one hand against any of the bodies referenced who have unlimited access to legal advice paid for by the tax-payer . See cases taken and won against Wicklow County Council for example, where councillors who took the cases bore the financial burden of paying for legal advice and representation in the public interest. In all cases, the councillors seeking to protect public assets were at risk of losing their homes in the event that the court found against them. Wicklow County Council, whose legal advisors are paid for by public funds bore no such risk. Access to legal advice for councillors under certain criteria would act as a counter balance to the power of Local Authorities and public bodies who have unlimited access to legal advice and representation paid for out of public funds .

See for reference

1996 chairman Thomas Cullen vs County Manager and Wicklow County council. ( Justice McCracken HC)
2002 elected members vs The Manager and Wicklow County council. ( Supreme Court)
2004 Cllr Deirdre de Burca vs The Manager and Wicklow County Council ( Justice McGuigan HC)
2007 Cllrs Cullen and Doran vs The Manager and Wicklow County Council ( Justice Le Foy HC )
2016 Cllrs Cullen and Nevin vs the Manager Wicklow County Council ( Justice Baker HC)

All these cases were taken at elected members personal expense. The manager had full immunity in all cases from any personal costs of litigation while the democratically elected councillors bore the burden of legal costs personally.

In all these cases the Law Agent of the Council, funded by public monies acted solely in the interest of the County Manager without any regard or dialogue with the elected members notwithstanding the fact that the elected members are constitutionally recognised by the state in relevant legislation as ‘the council’. The 1999 constitutional referendum on Local Government gave particular recognition to the democratic role of county councillors to represent constituents. Councillors are hindered in their constitutional role by the unequal access to the law agent of the council and the legal resources available to them. This democratic deficit has lead to a serious imbalance in the ability of councillors to carry out their duties and functions.

Summary

The percentage of time different councillors spend on their governance and oversight role and on their roles on external bodies varies considerably. Moorhead’s survey would I believe have benefitted from an additional interaction or qualitative element to her investigation. This would certainly have been more revealing in terms of the reasons behind the answers provided and would have helped better inform both the findings and recommendations of the report. This in turn could have facilitated and shaped the type of local representation Moorhead would obviously like to see.

I am strongly of the view 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”

because it is communicated all too easily to councillors in the absence of structural reform that those who attempt to exercise their oversight and governance role including holding local authorities to account may be knocking their heads off a brick wall potentially exposing themselves to personal liability and to the risk of losing the roof over their heads.