This case concerns the appointment of the President of Waterford Institute of Technology. On the 14th of May 2001 the Plaintiff, Kieran Byrne, was appointed as the chief officer of Waterford Institute of Technology for a term of ten years. In late 2010, in anticipation of the expiry of the plaintiff’s term of office, the Defendant applied itself to identifying and appointing his successor.

By s. 7(1)(b) of the Regional Technical Colleges Act, 1992 (as amended), the appointment of the President was a function of the governing body. The governing body of the college was required to ensure that the President was selected in accordance with the procedures determined by the Higher Education Authority.

By s. 9(2) of the Act, those procedures were required to include the composition of a selection board. Thereafter, a sub-committee was formed which came to be styled as the Presidential Appointments Committee.  The role of that committee was limited to overseeing the appointment process.

Dr. Donie Ormonde was appointed as chairperson of the governing body. There were eight applications for the upcoming position of President, including the Plaintiff, who applied on the last day permitted.

Following an interview conducted at the Office of the Public Appointments Service, the Plaintiff had a telephone call at home from the Chairman, Dr. Donie Ormonde congratulating him on his interview and told him that he was the selected candidate.

Soon afterwards, one of the members of the subcommittee, circulated an email to all of the others which expressed grave concerns about the interview process and that these concerns should be brought to the attention of the chairman of the Institute “and the whole process reconsidered”.

Following further deliberations, the Presidential Appointments Committee unanimously resolved to recommend to the governing body that it should defer a decision to sanction the appointment pending further clarification in relation to these issues.  In addition, a request followed from the Teachers’ Union of Ireland for “a complete and itemised list of all expenses and allowances claimed and/or incurred by Prof. Kieran Byrne during his tenure as President of Waterford Institute of Technology”.

Subsequently, a report issued by Deloitte found that in a number of respects there had been a failure to comply with the Waterford Institute of Technology procurement, travel, and hospitality policies and identified expenditure which was said to have been incurred for the cultural benefit of the Institute and its stakeholders and/or the university initiative which they thought warranted further examination by the governing body for appropriateness.

The news of the expenditure in Waterford Institute of Technology came to the chief executive officer of the Higher Education Authority who then arranged to meet the Plaintiff. His recollection of the meeting was that he suggested to the Plaintiff that if there was any substance to the allegations, it might be better that he should withdraw his candidature. The Plaintiff’s case is that he was entitled to be reappointed and that the governing body was not entitled to do anything other than to ratify his appointment.  Mr. Justice Allen considered the arguments advanced on behalf of the Plaintiff but ultimately decided to reject them.

The provision of the Higher Education Authority Selection Procedures to which the Plaintiff’s second witness in his evidence referred to was section 5.7 which provides that:- “The professional recruitment organisation shall examine and verify the documentary evidence of qualifications, references and other necessary criteria on the recommended candidate and present a report to the Governing Body on the process and on the extent to which the candidate recommended by the Selection Board meets the requirements for appointment. The Governing Body shall authorise the appointment subject to satisfactory certification from a medical practitioner nominated by the Institute in relation to the candidate’s health and subject also to vetting and certification of his/her qualifications.”

It was argued that this provision means that the governing body is bound to authorise the appointment, subject only to medical certification and verification of qualifications.

Mr. Justice Allen rejected the argument and held that any authorisation (if any) must be made subject to such certification and vetting. Even if it did mean what the plaintiff submits it means, it would be an invalid fetter upon the statutory power to make an appointment, which is vested in the governing body.

The court opined that in the Plaintiff’s case that there might have been difficulty in securing governing body approval for an alternative position is unsupported by any evidence and is inconsistent with the fact that he was effectively given such a position immediately upon the expiry of his term as President. For the above reasons, the court dismissed the Plaintiff’s case.
http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/b3f5f6c0b7ec618280258391003b8e47?OpenDocument