A Letterkenny solicitor has brought a High Court challenge against the recent co-option of Kilmacrennan councillor Michael McBride to Donegal County Council claiming the post should have been filled by a non-party candidate.
Mr. Shiels was granted permission by Justice Peart to proceed with a full High Court hearing into the matter.
In his affidavit to the court this week, Mr. Shiels, who ran as an independent candidate in the General Election and secured 1,876 first preference votes, pointed out that former councillor Jimmy Harte, now a Senator, had been elected to the Council as a non-party candidate at the local elections in June 2009 and had remained an independent candidate until joining the Labour Party in 2010.
On or about the 28th of April 2011 Mr Harte was elected to Seanad Eireann and, as a result, a casual vacancy arose in the membership of the Council, Mr. Shiels outlined.
Mr. McBride, who had been an unsuccessful Fianna Fail candidate in the local elections of 2009, announced in May this year that he had been selected by the Labour Party to be co-opted onto the Council to replace Mr. Harte as a Labour representative.
In his affidavit, Mr. Shiels said that at a meeting of Donegal County Council on May 30th, Mr. McBride had been nominated by fellow members of the Labour party and co-opted to replace Senator Harte.
“As an author on legal process and an active participant in the political process, I was astonished at what appeared to be a mechanism permitting the co-option of a party member to a seat won by a non-party candidate and a potential breach of law,” Mr. Shiels told the High Court.
In June he had raised the matter with the Council informally and also emailed local media outlining his concerns. The Council had, he idicated, issued a short statement to say that the procedure used in the co-option was a reserved function. “I have requested clarification on the procedure adopted at the meeting by a faxed letter to the County Manager sent on the 7th of June 2011.” But, he added, the Council had failed to address the matter. “ I have been informed by an independent member of the Council that the matter was presented as a “fait accompli” , and that he was not aware of the legal position governing non-party candidate’s vacancies, and is also concerned about the procedure adopted.”
Mr. Shiels said in order to avoid prosecuting these proceedings and the costs associated with same, his solicitor had written to the chairperson of the Council, the County Manager, and the Notice Party to take such action as necessary to ensure compliance with law and standing orders. “My solicitor faxed the letters and confirmed delivery of same via telephone and email and posted the letters by swift post. I requested that they contact my solicitor’s office by 12.30 pm today, outlining procedures adopted at the Council meeting , but at this point in time no correspondence has been received from the Respondent or Notice Party.”
Mr. Shiels, of Portview House, Drumnohoagh, Letterkenny, appeared before the High Court to seek a judicial review of the co-option by the Labour Party of Mr. McBride to the County Council. He claimed the latter had been co-opted contrary to the Local Government Act 2001 and the Standing Orders of Donegal County Council.
Mr. Justice Peart agreed that a full High Court hearing into the matter must be held and granted Mr. Shiels leave to proceed by way of High Court Judicial Review proceedings.
Efforts to contact Senator Harte before going to press proved unsuccessful.