Saturday 25 November 2017

Corporate enforcer quits

This week's announcement that Paul Appleby is to retire as head of the Office of the Director of Corporate Enforcement has once again thrust the low-key bureaucrat into the limelight.

As the end-of-January deadline approached for the receipt of retirement applications from public sector workers before the new, less generous public sector pension arrangements came into force, it was widely speculated in civil service circles that some big names would quit.

Even so, the news on Wednesday that Paul Appleby, boss of the Office of the Director of Corporate Enforcement (ODCE) since 2001, was taking early retirement came as a shock.

Not least to the Government, with a clearly surprised Public Expenditure and Reform Minister Brendan Howlin being forced to go on national radio to assure the public that Mr Appleby had graciously agreed to postpone his retirement for another six months.

It now transpires that Mr Appleby only informed Jobs and Enterprise Minister Richard Bruton of his decision just two days before the news was made public.

With a number of the ODCE's investigations, not least into the former Anglo Irish Bank, set to reach a climax in the coming months, the last thing the Government needed was the headache of appointing a new director.

Notice

By handing in his notice now, Mr Appleby's pension will be based on his pre-2010 salary of €150,000. With over 40 years' service, Mr Appleby will receive an annual pension of €75,000 and a lump sum, most of which will be tax-free, of €225,000.

If Mr Appleby had delayed his retirement, he would have qualified for a considerably less generous pension based on his average career earnings rather than his final salary.

It is not clear what effect, if any, his agreeing to the Government's request to stay on for a further six months will have on his pension entitlements.

By the late 1990s, it was clear that the enforcement of Irish company law was a complete mess.

Thousands of companies routinely violated such basic regulations as filing their returns on schedule, while abuses such as the 'phoenix syndrome' were widespread.

This was where the directors of a company with large debts put it into liquidation, thus leaving creditors in the lurch, only to re-open shortly afterwards under a similar name.

However, it was the uncovering of a number of high-profile business scandals in the late 1990s, including the Ansbacher offshore accounts, AIB's DIRT-dodging phoney non-resident accounts and NIB's facilitation of tax evasion by some of its customers, that finally prompted the then Enterprise and Employment Minister Mary Harney to act.

In 2001, the ODCE was established. It was to combine the functions of the old Companies Registration Office with a new enforcement role. Mr Appleby, who had been head of the company-law administration section at the Department of Enterprise and Employment, was appointed as its first director.

In this role, Mr Appleby had played a central role in the official investigations into the Ansbacher and NIB scandals.

Appointment

His appointment led to a predictable spate of "enforcer" newspaper headlines, with the mild-mannered career civil servant being portrayed as a sort of latter-day Elliot Ness who would root out the corporate bad guys.

Unfortunately, the reality hasn't always lived up to the hype.

While the advent of the ODCE has certainly led to an increase in compliance levels by most Irish companies, with eight company directors being disqualified in 2010 and a further 156 being restricted, the agency has been less successful in its handling of the more high-profile cases of alleged corporate wrongdoing thrown up by the post-Celtic Tiger bust.

This hasn't entirely been Mr Appleby's fault.

As early as 2005 he requested authority to recruit a further 20 staff in order to allow the ODCE to carry out investigations more quickly.

By 2008, the ODCE had still not received permission to recruit the extra staff and when the matter became public knowledge, the then Taoiseach Bertie Ahern humiliatingly slapped Mr Appleby down when he told the Dail that the director would have to "wait his turn".

The under-staffing at the ODCE has had serious consequences.

It was only last year, a full 13 years after evidence of systematic wrongdoing at NIB first came to light, that the bank's former chief executive Jim Lacey was finally disqualified as a company director.

Will the Anglo investigation drag on for as long? More than three years after the State was forced to nationalise the disgraced lender, no criminal charges have yet been brought against those responsible.

The slow pace of the Anglo investigation has caused widespread exasperation, not least to Mr Justice Peter Kelly, the head of the commercial section of the High Court.

As the ODCE's Anglo investigation has dragged on and on, Mr Justice Kelly, who has had to grant the ODCE several time extensions, has become increasingly irked at the delay in completing the inquiry.

In May 2011, when assured by the ODCE's barrister that its Anglo investigation was "substantially complete", Mr Justice Kelly asked: "What does substantial completion mean?"

Ouch!

Last month, the ODCE was back in front of Mr Justice Kelly looking for yet another extension.

The judge clearly wasn't impressed, remarking that this was the eighth time that the matter had been before him.

While Mr Justice Kelly conceded that the Anglo investigation was a complicated one, he went on to say that it appeared to him that it seemed to be taking "a very, very long time".

He also expressed surprise that there were only 11 gardai working on the investigation. While the judge was far too polite to say so, the implication of his comments was crystal clear: the ODCE needed to get a move on.

In response, the ODCE's barrister told the High Court that the agency had already transferred more than 150 Anglo files to the DPP and that the DPP could decide "within weeks" whether or not to press charges.

By agreeing to the Government's request to stay in his post for another six months, Mr Appleby has ensured that his record at the ODCE will effectively be judged by whether or not he can bring the Anglo investigation to a successful conclusion during that time.

Mr Appleby is now due to retire at the end of August. If, by that time, a number of individuals have been charged in relation to Anglo, then his term at the ODCE will be generally judged to have been a success.

It will be the final vindication of a low-key but determined civil servant who through dogged perseverance succeeded in holding to account those responsible for the largest bank failure in Irish economic history.

However, if Anglo charges aren't brought, then Mr Appleby's record at the ODCE will be judged far less charitably.

He will be widely seen, whether rightly or wrongly, as a competent administrator who, while undoubtedly improving the operation of what had previously been a shambolic system of company registration and regulation, was unable to raise his game for the really big occasion.

Irish Independent

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