A county councillor or member of a local authority is not required to absent himself from meetings on roads and sanitary services in which he has only a minor beneficial interest, a senior counsel has told Kerry County Council.
In particular, he should not have to leave meetings where the overall budget has been decided already and the only matters are the schemes to be proceeded with, even if he is on the list of approved contractors, Mr Esmonde Keane SC said in a written opinion to members of the council.
The member's interest, even if he were a plant hire contractor, would be remote and insignificant in the context of schemes where the overall budget was already decided.
The opinion was sought following a motion in which it emerged that Cllr Danny Healy-Rae was the highest-earning plant hire contractor on Kerry County Council. His company earned over €400,000 last year from the council.
Mr Healy-Rae had attended a roads meeting in his own electoral area concerning the council's roadworks programme 2004 and had requested certain works be carried out, Mr John J. Daly, county solicitor, outlined to Mr Keane.
This was on foot of a motion by Cllr Brendan Cronin (Ind) who wanted to know if the county manager, Mr Martin Nolan, could guarantee a conflict of interest had not arisen.
Mr Keane was asked whether a conflict of interest arose, whether Mr Healy-Rae should have attended that meeting and whether he should be absent from the full council meeting in March in which the roads programme for 2004 was to be finalised.
The same considerations seemed to arise in relation to council sanitary services meetings because Mr Healy-Rae might be selected to carry out digging and plant hire work in these too, Mr Daly wrote.
Plant hire work is not assigned at meetings but by the council's machinery yard and it is the council area engineers who arrange roadworks and who, along with the machinery yard, choose contractors from the approved list, Mr Daly explained.
Mr Keane said if a member was involved in finalising the list of approved contractors for roads, sanitary and housing, then he would be obliged to leave the meeting.
"Similarly if any scheme to which a member or a member's company had been appointed as a contractor was to come before the council, any such member should declare his interest and withdraw from any such consideration of such a scheme."
He should also absent himself where experience showed he had obtained a significant portion of work previously.
"In my view, however, in such circumstances in relation to, for example, the approval of the council's budget for the year, the interest of that member would be so remote or insignificant" it was unlikely to carry weight.
The position would be entirely different if additional monies were being decided on for schemes already under way, and in which the member or a connected person was connected to the scheme. Then he should declare an interest and absent himself from the meeting.
Under Section 171 of the Local Government Act 2001, in his annual declaration of interests, every member had a duty to declare if he supplied goods or services worth more than €6,348 to the council.
The county manager could not be expected to be the policer of the Local Government Act with regard to possible conflict of interest, Mr Keane said.
Mr Healy-Rae (Ind) said he had been 100 per cent cleared of any aspersions cast against him. The questions arose out of a desire to hurt him politically, he claimed, and he had never taken part in discussions where a conflict of interest had arisen.