Former Donegal harbour master loses appeal over dismissal

December 17, 2019

A former Donegal harbour master has lost an appeal over his dismissal 10 years ago following an investigation which found he had private marine service business interests which were in conflict with his role as a civil servant.

Patrick J Kelly was dismissed as Killybegs harbour master in 2009 following a number of complaints about him including from Mary Coughlan in 2004 when she was Minister for Agriculture.

The Minister had expressed concerns including that Mr Kelly had employed his brother-in-law at the harbour without following due process and that he switched off the CCTV system in the harbour.

An investigation was ordered by the Department of Marine and Natural Resources and a number of allegations were found proven against him.

These included providing pilotage services for reward, receiving payments in his personal capacity while on duty as harbour master and using some of the Killybegs harbour workforce in the clean up of an oil spillage while they were being paid by the Department.

He claimed it was his understanding he could receive payments for pilotage on his own time.
His dismissal was recommended to the Minister for Marine.

He appealed and among his submissions to the appeal board was that he never denied doing any of the activities he was accused of as he was “instructed to do them by his superior and by other agencies in the same Department i.e the Coastguard.”

The appeal board found a serious conflict of interest between his duties as harbour master and the carrying out of commercial pilotage work. It did not overturn the dismissal recommendation.

He then brought a challenge to that decision to the High Court which rejected his case.

He appealed claiming, among other things,a fundamental breach of his right to fair procedures and that he was not given an opportunity to test the strength of the evidence against him. He also claimed he was not provided with a record of what he said were the “scandalous complaints” against him from Minister Coughlan.

On Tuesday, a three-judge Court of Appeal (CoA) dismissed his appeal. It said it was not necessary to allow him cross-examine all the witnesses during the investigative process and he was not denied fair procedures.

In relation to his claim of not being being afforded fair procedures over Minister Coughlan’s complaints, the CoAsaid neither of the Minister’s initial complaints, about the employment of his brother-in-law or the CCTV system, formed part of the investigation into his conduct.

Ms Justice Caroline Costello said in a subsequent meeting with Minister Coughlan on October 15, 2004, the investigator made notes of comments she made at the meeting. These included “difficult man”, “people apoplectic – not acceptable”, “no security system – PK doesn’t want”, “PK bullyboy”, “shot every dog in D’gal town.”

Ms Justice Costello said Mr Kelly claimed the fact and details of that meeting were concealed from him until his court case and breached his right to know.

The judge said Mr Kelly was incorrect because most of the Minister’s complaints did not form part of the investigation. Mr Kelly had not been required to answer those complaints as they did not form part of the charges against him. His claim in relation to want of fair procedures in relation to this also failed, the judge said.

He had not established that the investigator showed actual bias toward him or that his decision (to recommend dismissal) was tainted by objective bias arising out of the involvement of Minister Coughlan in 2004.