Analysis of University of Limerick ReportFriday 10 November 2017 16.11
By Conor Ryan.
A sobering report into how the University of Limerick treated its staff and in particular whistleblowers brought a lot out into the open – but it is unlikely to bring an end to the university’s embarrassment.
The inquiry report to the Higher Education Authority by Dr Richard Thorn was unprecedented in the manner in which it investigated a university.
It was triggered when the college was confronted by a series of issues raised during the research for the RTÉ Investigates - Universities Unchallenged, programme which was broadcast in May.
However, despite its hard-hitting tone Dr Thorn’s report was only able to deal with a portion of the problems raised and it is the outstanding issues which are likely to keep the University in the spotlight for the foreseeable future.
In a rare demand for personal accountability the new report said the University had fallen in short in its treatment of staff.
It went further. It said the institution should not be alone in acknowledging this and that anybody in UL who was involved should also hold their hands up personally.
It said those who were at the wrong side suffered and the University’s litigious strategy had failed to account for the fact that its ability to amass large legal bills created a power imbalance compared to what was available to individual staff with who it was in dispute.
The report also criticised the University for communications it had with the Public Accounts Committee as recently as April 2017 when the then president, Prof Don Barry, explained why a particular academic had received a severance package.
The University’s correspondence publicly flagged an allegation by three students of inappropriate touching by the employee and led to a headline in Irish Independent on May 10 that read "Lecturer who ‘inappropriately’ touched students and made sexual comments’ receives €150k payoff".
This letter was sent despite UL having its own investigation already come to the conclusion there was no evidence obtained of inappropriate touching. Dr Thorn’s said the letter to PAC did not properly describe the case and gave the wrong impression as to why the person was had his contract terminated.
The airing of this and other cases gave the main stakeholders reason to express the hope that the Dr Thorn review was at least the beginning of the end.
Education Minister Richard Bruton said: "The Review makes a number of important recommendations that must be addressed by the University of Limerick in order to bring these serious issues to a conclusion," he said.
The chief executive of the Higher Education Authority, Dr Graham Love, was clear in his expressing his hope of something similar.
"Swift and complete implementation of the recommendations in this report by the University will enable a line to be drawn under this story," he said.
The new president of UL Dr Des Fitzgerald, who did not preside over any of the issues concerned, had a similar view.
"I hope the publication of this report further helps to bring a positive resolution to these matters," he said.
The words "conclusion" and "resolution" speak to a hoped-for finality as much as the phrase "a line to be drawn under".
But this optimism appears to ignore the fact that in an effort to complete the report quickly some of the most controversial aspects of UL’s conduct were set aside for other inquiries.
They were not trivial matters.
"The RTÉ Investigates programme raised several matters that have not been considered by the review… These matters, including conflicts of interest, procurement and matters associated with further education of staff, have been addressed by Deloitte internal audit report," the report said.
It meant in the Dr Thorn review there was no examination of procurement or ethics procedures which were raised in the purchase of more than €100,000 worth of pens and medallions from a jewellery shop run by a long time member of UL’s Governing Authority, Tadgh Kearney.
It did not examine how and why UL paid almost $100,000 to cover the tuition costs of a manager and member of its Governing Authority, Pat Rockett, and the Director of HR, Tommy Foy. Both men received doctorates in business administration following an online distance course run from America.
And it did not investigate the how the University came to tell the Department and the Comptroller and Auditor General that two managers who received severance payments in excess of €200,000 each had been subject to disciplinary issues.
This last claim wa completely at odds with the facts especially because UL told RTÉ that, built in to those severance packages, there was a commitment to hire both men back on 3-year consultancy arrangements because of their value to the institution.
The Dr Thorn review did not look into this directly but explained: "This review has considered the Deloitte report, its observations, recommendations and findings and finds no reason to challenge any aspect of the report."
But other oversight bodies had already indicated they wanted answers.
In June the Department of Education was before the Public Accounts Committee and it said it could not deal fully with the issue of those particular severance payments as this was the subject of Dr Thorn’s review. The Department’s representative that day, Tony Gaynor, said "the decision was taken then that the issue of the severance payments would be tied in with the review that is being undertaken by Dr. Thorn.
"We will have to await the outcome of that review and its findings with regard to the severance payments," he said.
In a statement clarifying whether it agreed with the decision to narrow the scope of the inquiry the HEA said it was happy the review team delivered on its terms of reference.
"The HEA considers that the reviewer successfully delivered on the terms of reference, and that adopting this approach allowed him to present the evidence which underpins the findings of the report. This did not… shut down any lines of potential enquiry, as the reviewer was entitled to pursue any further action he believed was necessary to clarify any issues addressed in these reports," it said.
The benefit of the narrower review is that it was delivered within six months and the €23,627 cost pales beside other inquiries into matters of public controversy.
But it is unlikely to do what the statements of the Minister, the HEA and UL seemed to yearn for this week – that it would be the end of the affair.
On December 12 the High Court is scheduled to hear the first motion in a case taken by its former director of life-long learning, Dermot Coughlan.
He filed the case following the RTÉ Investigates programme after the research it uncovered made him aware of UL’s claim to the department that his severance package was motivated by likely disciplinary proceeding and performance issues.
He rejected this in the strongest possible terms and pointed to the fact that he was immediately hired back by UL to work on a consultancy basis for three years and this would not have happened if there were disciplinary problems.
This point was subsequently accepted by UL who said he and his colleague, John Fox, were retained on consultancy contracts because of their value to the company.
Mr Fox’s case was noted by the Dr Thorn review: "The fact that… the consultancy services for UL commenced immediately after the termination of the employment issues suggests that despite any concerns about performances the University was still prepared to engage the services of Person K for a period after leaving UL."
If the High Court action is not settled it is likely to bring these issues back into the public domain.
Then there are the matters that Dr Thorn put to one side.
Rather than close the book on UL Dr Thorn recommended further work. He said that UL should draw up a new account of all of its severance payments and deliver this document to the C&AG, the Department, the HEA and the Public Accounts Committee within the next month.
He also said it should circulate the Deloitte report he relied on to the same stakeholders on a confidential basis.
For UL this means the affair is not over and these reports will have to be picked at individually.
Furthermore, Dr Thorn’s very reliance on the Deloitte reports comes with its own caveat, added as a footnote to his work.
"It should be noted that the Deloitte reports referred to in this report are, as is standard with many audit reports, subject to a number of reasonable limitations eg time available, reliance on management and staff report, not a comprehensive statement of all weaknesses, etc".
This is likely to raise issues with the Public Accounts Committee who addressed this very issue on the same day Dr Thorn was introduced to it in June.
Deputy David Cullinane flagged with the HEA his concerns about its reliance on audit reports prepared for the institutions themselves.
Mr Cullinane said: "There is an outsourcing of oversight by the HEA to KPMG, Deloitte, Ernst and Young and so on. Why does the HEA not have the in-house capacity and experience to do that work itself? Why is further money being spent on these organisations? The institutes are hiring and paying them over and over again.
"That the organisations benefit from being hired by the institutes must have some impact on their work. I am not satisfied that that is truly independent. That view is shared by some other committee members. There is a practice of outsourcing of governance and oversight and that is not good enough," he said.
It all means that the embarrassing period of public scrutiny is not yet over for the University of Limerick.