Cork TD seeks to stop inquiry into his alleged offensive comments about Travellers
Independent Ireland TD Ken O'Flynn has called on the public ethics watchdog to halt its inquiry into alleged offensive comments he made about Travellers while a member of Cork City Council four years ago.
Lawyers for the Cork North Central TD raised a series of objections to the planned inquiry at a sitting of the Standards in Public Office Commission (Sipo) on Monday.
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The TD is accused of making comments about the Spring Lane halting site in Ballyvolane, Cork, during an interview on Cork's Red FM on June 16th, 2021, that are alleged to be inaccurate, misleading and indicative of a biased view of members of the Traveller community.
It is also claimed Mr O'Flynn demonstrated bias against Travellers in social media posts on his Facebook account.
Mr O'Flynn denies three separate allegations that he contravened the Local Government Act 2001, the Code of Conduct for councillors and a specified act under the Standards in Public Office Act 2001 and insists his remarks represent 'fair comment'.
During the radio interview, Mr O'Flynn stated a 72-page report into Spring Lane by the Ombudsman for Children entitled No End in Site was 3-4 pages in length, did not mention the parents of children concerned and did not involve Tusla.
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He also allegedly remarked about the Traveller community: 'What are they now – an ethnic minority?'
Counsel for Sipo, Conor Feeney BL, said it was alleged that Mr O'Flynn – as a member of a local authority – had failed to maintain the proper standard of integrity, conduct and concern for the public interest, contrary to Section 168 of the Local Government Act 2001.
The inquiry heard that the alleged comments also represented several breaches of the Code of Conduct for councillors as well as amounting to a specified act under the Standards in Public Office Act.
The Cork politician is also accused of showing bias towards members of the Traveller community in posts on his Facebook account.
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Sipo's counsel said it is alleged that Mr O'Flynn also failed to monitor or remove inflammatory and derogatory comments made about Travellers in response to his posts.
He is further accused of expressly endorsing some of those comments by using the 'like' feature in reply to posts on Facebook.
Mr Feeney said Mr O'Flynn's acts and omissions amounted to several breaches of the Code of Conduct for councillors including the unacceptable use or misuse of social media by promoting discrimination.
The Sipo Commission heard that Mr O'Flynn was challenging its right to proceed with an inquiry on a number of grounds including that he was not carrying out his functions as a councillor when the alleged acts took place and that his remarks constituted legitimate commentary.
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Counsel for the TD, Brian Leahy BL, said there had been 'cherry-picking' of posts by Mr O'Flynn which were selective from half a million interactions on his Facebook account and not a fair reflection of his attitude to the Traveller community.
Mr Leahy claimed the Facebook posts pre-dated a newer version of the Code of Conduct for councillors which contained a specific provision in relation to the use of social media.
The barrister accepted that the alleged comments about the Traveller community sounded 'dismissive' but noted that there was a discrepancy between the transcript of the Red FM interview and the actual audio recording.
Mr Leahy said Mr O'Flynn was saying that Cork City Council was doing everything it could 'for what now have been declared an ethnic minority.'
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He argued his client was making a statement of fact as the Traveller community had been so recognised since 2017 and the council was obliged to 'go that extra step' in relation to housing for them.
Mr Leahy said there was a particular bias against Mr O'Flynn because of a perception that he had a particular view on Travellers.
He claimed the radio interview was essentially about housing which Mr O'Flynn accepted was a serious problem for everyone but particularly the Traveller community.
However, the barrister said Mr O'Flynn was not performing his duties as a councillor in giving the interview.
Mr Leahy said the Commission would have to be very balanced in favour of a person who expressed an opinion if it was seeking to interfere with 'someone's right of real expression in the political sphere.'
He noted that Mr O'Flynn admitted he had issues with the Spring Lane halting site but said anyone in Cork would agree there were problems with it as around 100 people were living in terrible conditions in a halting site with space for eight families.
'Mr O'Flynn has brought this to the attention of the community and he has advocated for proper treatment of the Travelling community. That may have come across as criticism but it's talking about the problem,' said Mr Leahy.
He added: 'We can't brush it under the counter….we have to be open and have adult conversations.'
Mr Leahy said he did not envy the task faced by the Commission in determining when a political point of view strayed from being a legitimate expression of concern into 'unlawful speak.'
He stressed that it was very important that politicians can say what they need to say.
'If we stop them communicating and saying what they need to say, we end up with Brexit and Trump,' Mr Leahy observed.
He acknowledged that the TD had 'stepped on people's toes' with his comments but argued that both Mr O'Flynn and Cork City Council had a problem with the report by the Ombudsman for Children.
Arguing that the complaint against Mr O'Flynn did not warrant a SIPO inquiry, Mr Leahy said the TD 'spoke from the heart' about what he thought was an attack on the council.
Counsel said Mr O'Flynn simply wanted 'to bring up issues' and he noted that people had also been insulting to the politician after he had come out as a gay man
The inquiry heard the TD did not want to offend anyone 'but if he has, he didn't mean it.'
Mr Leahy also indicated that the TD would be making an application at a later stage for his legal costs if they were successful in stopping the inquiry as Mr O'Flynn was 'out of pocket' from his dealings with SIPO.
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In reply to questions from the Commission chairperson, Garrett Sheehan, Mr Leahy said it was very difficult to determine where a function of a councillor ended as well as finding a balance between free speech and offensive speech that needed to be restrained.
However, Mr Leahy said he did not believe Mr O'Flynn's comments had reached that threshold.
He also confirmed that the TD had not actively removed any of his Facebook posts apart from one incorrect statement, while he had 'unliked' a few messages that had been the subject of complaints.
It is understood the SIPO Commission will give its ruling on the application to halt the inquiry in the near future.
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