Sipo hearing adjourned to allow McElvaney to take court challenge
Councillor threatened to walk out and claimed he was ‘entrapped’ into asking for payment
Monaghan councillor Hugh McElvaney was the subject of the Primetime Investigates broadcast in December 2015.
Councillor Hugh McElvaney threatened to walk out of the Sipo public investigation hearing if it went ahead and showed unedited RTÉ video footage of him offering to assist an alleged windfarm planning application in exchange for money.
The threat came after the commission ruled against an application by Mr McElvaney’s barrister, Breffni Gordon, to have a stay on the proceedings. The proceedings were presided over by the chairman of Sipo, retired former High Court judge Mr Justice Daniel O’Keeffe, and commissioners Seamus McCarthy, Peter Finnegan, Martin Groves, Peter Tyndall and Jim O’Keeffe.
Mr Gordon sought the stay on the basis that Mr McElvaney had been entrapped by “a blonde, no doubt attractive lady” working undercover for RTÉ
He said his client was now being “lined up” and “could not possibly get a fair hearing at this point in time” to “vindicate his good name”.
When the application was rejected, Mr Gordon said that if the hearing went ahead and played the full, unedited version of Mr McElvaney’s encounter with the undercover RTÉ reporter, who used the name Nina Carlson, the councillor would walk out and had instructed him, Mr Gordon, not to participate further in the hearing.
In light of this, the commission adjourned for four weeks, giving Mr Gordon time to go to the High Court to challenge the ruling.
The hearing arose from a complaint to Sipo by the chief executive and the cathaoirleach of Monaghan County Council arising from an RTÉ Investigates report of December 2015.
It concerned a proposed development, allegedly by a foreign investment company, represented by a person who was, in fact, the undercover RTÉ reporter. Mr McElvaney claims he was “entrapped” by her.
In the footage as broadcast, Mr McElvaney is shown asking Ms Carlson for £10,000, which he indicated should be in sterling, to help fend off local objections to the alleged wind farm and also help the fictitious company navigate the council’s planning process.
Mr McElvaney is shown sweeping the sought-after money across a table with both hands, stuffing it into his pockets.
Soon after the broadcast and the controversy it provoked, Mr McElvaney claimed in an interview with the Northern Standard that he was only playing along with the journalist because he knew from the outset that someone was trying to dupe him.
“Any public representative worth his salt would have nothing to do with an investment company or developer of any kind,” he told the Standard.
However, this claim played against him when, in response to his “entrapment” claim, his Standard interview about playing along with Ms Carlson was recalled.
Following the complaint to Sipo, the commission carried out an initial investigation and decided there was prima facia evidence that Mr McElvaney, now an independent but then a Fine Gael councillor, had breached local government and ethics legislation under four headings.
They include failing to maintain proper standards of behaviour during his meeting with Ms Carlson; seeking payment, saying he would “get the population on side”, and asking for his dealings with Ms Carlson to be kept secret.
The alleged breaches did not enhance public confidence in local government and were not based on considerations of the public interest, according to the list of alleged contraventions.
In seeking to have the public hearing stopped, Mr Gordon said words and phrases such as public trust, integrity, consideration of public interest, improper benefit, standards of integrity were being used against Mr McElvaney.
It was alleged, said Mr Gordon, that Mr McElvaney’s actions may have brought the entirety of Monaghan County Council into disrepute. What was being alleged were “enormously serious contraventions” of the ethics legislation that involved serious reputational issues.
“My client is a person who has given very significant public service to his county and to the State and he should be provided as a minimum an opportunity to vindicate his good name,” said Mr Gordon.
The undercover reporter known as Ms Carlson was not among the list of witnesses to the hearing - RTÉ is claiming privilege and not advancing her as a witness - and Mr McElvaney would not have an opportunity to cross examine her, said Mr Gordon. This was a “gross violation” of Mr McElvaney’s rights; she had been “engaged in a form of illegal entrapment,” charged Mr Gordon.
Noting that the law on entrapment was “very academic”, he said nonetheless that Mr McElvaney had a right to cross examine Ms Carlson’s evidence, her demeanour and body language.
Counsel for Sipo, Seamus Doherty SC, said Mr Gordon was operating under a “fundamental misapprehension” as to the proceedings. This was not a criminal trial, or a regulatory prosecution, but an investigation.
The hearing would be shown unedited video made by RTÉ and Mr McElvaney was present to give evidence and vindicate his rights in person.
The video would show “what Councillor McElvaney said and did” and the manner of the proceedings had been flagged to him and his lawyers “for a very considerable time”.
There was no basis for a stay in the proceedings, he said.
Ruling against Mr McElvaney, the commission chairman said a member of Sipo staff, who appeared in the RTÉ Investigates programme, had done so only to give general information and expressed no view on Mr McElvaney.
“The member of staff in question had no role whatsoever in the [Sipo] investigation in respect of Councillor McElvaney,” said Mr Justice O’Keeffe.
He said Mr McElvaney’s accuser was not the undercover reporter but Monaghan Council and the councillor would have an opportunity “to give evidence and to call any witnesses on his behalf if he so chooses”.
Mr Gordon said Mr McElvaney had no right of appeal against any report made in due course by Sipo and playing the unedited RTÉ video “might cause some embarrassment” to the councillor.
If the hearing went ahead, he would have to go to the High Court for a prohibition order against Sipo. In response Mr Justice O’Keeffe adjourned the hearing for four weeks and said he expected an application to be made to the High Court “forthwith”.