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Investigation, Fair Procedure, Defamation

and the "Ultra Vires" Rule

Investigation, Fair Procedure, Defamation and the “Ultra Vires” Rule


The recent case of Byrne v Irish Sports Council [2013] IEHC 438 concerned the issue of whether the Sports Council had acted ultra vires in respect of the appointment of a third party to investigate allegations against a Council member.

Background

The applicant was well known in sports including recently being appointed as Director of Special Projects with the FAI from 2004 until 2011 and Chief Executive Officer of the HSE Community Games since 2012.The applicant’s previous connections to the FAI were known to the Minister for Sports and he included the FAI as a “declared interest”. At each Council meeting, if an agenda item related to the FAI funding, the applicant absented himself to avoid any chance that a particular member might be considered to have influenced a vote on funding to the sporting organisation with which they have a declared interest.

On 12th April 2013, the applicant received a letter from the Chairman of the Irish Sports Council which provided:

“I am writing to request that you make yourself available to meet with me privately in advance of the next Council meeting scheduled for 12 midday this coming Tuesday, 16 April.I have received a letter from the Football Association of Ireland, the contents of which I find troubling, and I would appreciate an opportunity to discuss it with you in advance of the Council meeting…..”

The applicant did not receive the letter referred to prior to the meeting as it was sent by email and the applicant had already left his home. At the meeting the applicant was asked to resign. He was shown a copy of the FAI letter but not given a copy and the letter also contained two bundles of emails. The applicant was informed that he had breached the Council’s Code of Conduct, the Irish Sports Council Act, 1999 and the Standards in Public office requirements. The applicant stated that he wished to take legal advice and was informed if he did not resign the chairman would set up an investigation which would be conducted by “a statutory officer of the State” and which could result in the applicant being “personally at risk”.

The basis of the letter concerned a Freedom of Information Request made to the Irish Sports Council by an unnamed third party. The FAI had become aware that the Council and/or members of the Board of the Council had been in receipt of emails from the applicant regarding FAI funding matters. The letter enclosed a bundle of such emails which the FAI considered serious for a number of reasons including:

1. Despite the fact that the applicant had declared his previous interest in the FAI, he continued to be involved in and endeavoured to exercise an influence over funding decisions pertaining to the FAI;
2. The emails showed that the applicant improperly continued to involve himself in email communication with several respondent Board members regarding FAI funding matters.
3. The content of the emails were considered by the FAI to amount to a grave and improper interference in the funding process.

The formal meeting of the Council took place on the 16th April 2013 after the applicant’s meeting concluded. The applicant was asked not to attend the first part of the meeting as it concerned him. The meeting was ultimately adjourned but the appellant noted a number of inaccuracies with the minutes and also noted that the emails enclosed in the letter had not been circulated. At the meeting it was decided unanimously that Mr Paul Appelbe, former Director of Corporate Enforcement, should be appointed by the respondent to conduct an independent investigation in the matter, to make findings of fact, and to report back to the respondent when the investigation is concluded.

The applicant was very concerned about his personal reputation given that the minutes of the meeting recorded allegations against him and the meeting was not provided with the full basis for those allegations and he was given no opportunity to address them at the meeting, prior to any decision to appoint an independent investigator.

The applicant then received a letter from the chairman of the respondent dated 18th April 2013 informing him that “having considered the matter, the Council were of the unanimous view that an immediate and thorough investigation is warranted“. Mr Appleby wrote to the appellant on 4th June 2013 enclosing a copy of the Terms of Reference and informing him he was investigating two issues. He also enclosed copies of some of the materials in his possession which he considered to be material to the two issues he was investigating. He referred to paragraph 14.6 of the ISC Code of Governance and Business Conduct which provided:

If any member [of the Council] or Staff Member has concerns about suspected irregularities involving the functions, property or services of the Irish Sports Council they should immediately bring those concerns to the attention of the Secretary so that the matter may be appropriately investigated. Members and staff in all categories are required to cooperate fully with any enquiries or investigations in relation to suspected irregularities.”

The applicant noted that there was no evidence disclosed of any conflict of interest on his part in relation to voting on funding issues related to the FAI and no evidence of improper or unlawful disclosure to any third party. Some steps in the investigation had been taken prior to commencement of proceedings and the investigation halted. The applicant also argued that while he was sent draft Terms of Reference by the Chairman after the meeting, he could not have any meaningful input therein in the absence of sight of the emails which form the basis of the FAI complaints. The applicant complained this was a breach of fair procedures.

The chairman of the respondent argued that he believed that it was entirely proper that the matter should be independently investigated and rejected the applicant’s complaints about the procedures adopted. The respondent also felt there was sufficient information in the letter dated 3rd April 2013 to justify an investigation and that it was not necessary for the Council members to see the emails enclosed.

Issues to be decided

The Court noted that there were three main strands to the applicant’s challenge to the legality of the decision to appoint an investigator:

1. It was submitted that the Council had no power to decide to have such an investigation carried out and that the decision to do so was ultra vires its statutory powers.
2. The applicant stated that he was entitled to be provided with the emails enclosed with the FAI letter in order to fully and properly be in a position to consider his position and to be heard prior to the Council’s decision.
3. The appellant submitted that the emails should have been provided to the members of the Council at the meeting, so that they could be in a position to properly understand the allegations levelled against him.

In addition the following points were noted:

4. The appellant submitted that the investigation was flawed given the fact that the applicant was denied an opportunity to have any meaningful input into the formulation of the Final Terms of Reference since his requests for copies of the emails were refused.
5. The partial documentation upon which the investigation was being conducted was obtained unlawfully (in breach of the Data Protection Acts 1988-2003) and in breach of the applicant’s right to privacy.
6. It was contended that even if the Council properly and lawfully decided to have an investigator conduct an investigation and provide Terms of Reference for that purpose, Mr Appelbe had unlawfully altered those Terms of Reference.

The ‘vires’ issue

Counsel for the applicant contended that the Council was a creature of statute only and that the Minister may remove a person under the provisions of section 13 (2) in the event that in the opinion of the Minister the person had become incapable through ill health of effectively performing the duties of the office, or the member has committed some stated misbehaviour, or the removal appears to be necessary for the effective performance of the Council’s duties. It was submitted that the respondent had no role in those functions and no power under the statute to investigate the actions of any member of the Council. Counsel also referred to Section 6 and Section 7 and argued that while the Minister may by order direct the carrying out of an investigation pursuant to the provisions of section 6 (1) (g) of the Act, he had not done so, and that without such an order being made by the Minister the Council itself had no investigative power or function under the Act. Counsel also submitted that the Council’s Code of Governance and Business Conduct could not add to powers conferred on the Council by statute.

On behalf of the respondent, counsel conceded that the Act of 1999 contained no express power for the Council to appoint an independent investigator to conduct the investigation arising from the FAI’s letter but submitted that by necessary implication there was such a power so that the Council can comply with the Code as well as its statutory obligations.Counsel submitted that the power to investigate into the alleged misconduct of a Council member was a power which was necessary to enable the Council to perform its statutory functions properly. Counsel referred to the cases of Attorney General v. Great Eastern Railway Company [1880] 5 App. Cas, McCarron v. Kearney [2010] 3 I.R. 303, Casey v. Minister for Arts, Heritage, Gaeltacht and the Islands [2004] 1 I.R. 402 and An Blascaod Mor Teoranta and others v. The Commissioners of Public works in Ireland and others, unreported, High Court, 18th December 1996.

Conclusions on the ‘vires’ issue

Justice Peart concluded that in his view the Oireachtas could not have intended that the Council should have the power to investigate the conduct of a Council member and noted that Section 20 was very detailed and specific in relation to the disclosure of interests obligations. He also noted that the section was “demonstrably silent in relation to any power of the Council to do likewise in relation to a Council member“. He further noted

“….there is nothing within the Act, or by reference to the functions conferred upon the Council by the Act, or any policies identifiable from the Act which contemplates or makes necessary a power for the Council to investigate one of its own members. The plain words of the Act make this clear in my view…….”.

He concluded that the decision of the Council made on the 16th April 2013 was ultra vires and must be quashed.

Fair procedures/constitutional justice

Justice Peart stated that in his opinion the manner in which matters proceeded to the decision by Council on the 16th April 2013 lacked fairness to the applicant and that “In my view the applicant is in no different a position than for example a solicitor, doctor, nurse or other professional person whose reputation is important“. The Court further noted that the applicant should have been afforded an opportunity to know precisely what was being alleged against him. At a minimum “the appellant needed to be given copies of the emails enclosed with the letter of the 3rd April 2013 so that he would be placed in a position to know the basis for what was stated in the letter from the FAI, before making a meaningful submission or response.

Justice Peart further commented……”The setting up of an investigation and the appointment of a former Director of Corporate Enforcement carries with it the whiff of sulphur which will not easily be contained within the four walls of the room in which the decision to appoint him was made“.

Justice Peart concluded that he could not see any reason why emails were not provided to the Council members at or before the meeting on the 16th April 2013 and that the members were denied an opportunity to consider the emails and possibly reach a conclusion that no investigation was justified.

Decision

Justice Peart concluded that the decision made on the 16th April 2013 to appoint an investigator to investigate the applicant was ultra vires the statutory powers of the respondent and that the said decision be quashed.