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34 2009

National Asset Management Agency Act 2009

Chapter 2

Membership of Board and Related Matters

Functions of Board.

18 .— (1) There shall be a Board of NAMA, whose functions are as follows:

(a) to ensure that the functions of NAMA are performed effectively and efficiently;

(b) to set the strategic objectives and targets of NAMA;

(c) to ensure that appropriate systems and procedures are in place to achieve NAMA’s strategic objectives and targets and to take all reasonable steps available to it to achieve those targets and objectives.

(2) For the purposes of the Board exercising its functions under subsection (1), and without prejudice to any of its powers at law, the Board may provide for the performance of any such function by an officer of NAMA.

(3) In performing its functions, the Board shall act in utmost good faith with care, skill and diligence.

Membership of Board.

19 .— (1) The Board consists of—

(a) 7 members appointed by the Minister (in this Act referred to as “ appointed members ”), and

(b) the Chief Executive Officer of NAMA and the Chief Executive of the NTMA as ex-officio members.

(2) Subject to subsections (3), (4) and (6), the Minister shall appoint a person to be an appointed member only if, in the opinion of the Minister, the person has expertise and experience at a senior level in one or more of the following:

(a) finance and economics;

(b) law;

(c) social housing and community development;

(d) accountancy and auditing;

(e) public administration;

(f) credit management;

(g) project finance;

(h) construction and land development;

(i) property management and sale;

(j) valuation;

(k) urban and land planning;

(l) banking and investment;

(m) insolvency and restructuring;

(n) risk management.

(3) A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit in that House or who is a member of the European Parliament is disqualified from appointment as an appointed member of the Board while he or she is so entitled or is such a member.

(4) A person who is a member of a local authority is disqualified from appointment as a member.

(5) A member of the Board shall, not later than 3 months after appointment, furnish to the Minister a tax clearance certificate.

(6) The Minister shall, so far as is practicable and having regard to relevant experience, ensure an equitable balance between men and women in the composition of the Board.

Term of office of appointed members.

20 .— (1) Subject to subsection (2), the term of office of an appointed member is 5 years.

(2) Of the first appointed members, the Minister shall appoint 2 members for a term of office of 3 years and 3 members for a term of office of 4 years.

(3) Subject to subsection (4), an appointed member whose period of office expires by the passage of time is eligible for re-appointment as such a member.

(4) An appointed member is not eligible to serve for more than 2 consecutive terms of office.

Remuneration, etc., of appointed members.

21 .— (1) An appointed member shall be paid such remuneration and such allowances in reimbursement of expenses incurred as the Minister from time to time determines.

(2) An appointed member holds office on such terms (other than the payment of remuneration and allowances for expenses incurred) as the Minister determines at the time of the member’s appointment.

How appointed members cease to hold office.

22 .— (1) An appointed member ceases to be such a member if he or she—

(a) is adjudicated bankrupt,

(b) makes a composition or arrangement with creditors,

(c) is convicted of an indictable offence in relation to a company,

(d) does not furnish a tax clearance certificate as required by section 19 (5),

(e) is convicted of an offence involving fraud or dishonesty, or

(f) is disqualified or restricted from being a director of a company.

(2) If an appointed member—

(a) is nominated as a member of Seanad Éireann,

(b) is elected as a member of either House of the Oireachtas or as a member of the European Parliament,

(c) is regarded, pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997 , as having been elected to the European Parliament to fill a vacancy, or

(d) becomes a member of a local authority,

he or she thereupon ceases to be an appointed member.

(3) An appointed member may at any time resign his or her membership by letter addressed to the Minister. The resignation takes effect on the date specified in the letter or when the Minister receives the letter, whichever is the later.

(4) The Minister may remove an appointed member on reasonable notice in writing at any time from membership of the Board (or, if the appointed member concerned is the Chairperson, either from the Board or only from being Chairperson) if—

(a) in the Minister’s opinion, the member—

(i) is not adequately performing his or her functions, whether because of incapacity through illness or injury or otherwise,

(ii) has contravened section 30 or 31 , or

(iii) has committed misconduct specified in the written notice,

(b) in the Minister’s opinion, a material conflict of interest has arisen in relation to the member, or

(c) his or her removal appears to the Minister to be necessary or expedient for the effective performance by NAMA of its functions.

(5) An appointed member of the Board, upon the expiry or other termination of his or her term of office, shall also be taken to have resigned from any directorship of a NAMA group entity.

How ex-officio members cease to be Board members.

23 .— (1) An ex-officio member of the Board ceases to be a member if he or she—

(a) ceases to be the Chief Executive Officer of NAMA or the Chief Executive of the NTMA, as the case may be,

(b) is adjudicated bankrupt,

(c) makes a composition or arrangement with creditors,

(d) is convicted of an indictable offence in relation to a company,

(e) is convicted of an offence involving fraud or dishonesty, or

(f) is disqualified or restricted from being a director of a company.

(2) If an ex-officio member of the Board—

(a) is nominated as a member of Seanad Éireann,

(b) is elected as a member of either House of the Oireachtas or as a member of the European Parliament,

(c) is regarded, pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act 1997 , as having been elected to the European Parliament to fill a vacancy, or

(d) becomes a member of a local authority,

he or she thereupon ceases to be an ex-officio member.

(3) An ex-officio member of the Board, upon the expiry or other termination of his or her term of office, shall also be taken to have resigned from any directorship of a NAMA group entity.

Filling of casual vacancies, etc.

24 .— (1) If an appointed member dies, resigns, retires, becomes disqualified or is removed from office, the Minister may appoint a person to fill the vacancy so occasioned. The person so appointed shall be appointed in the same manner as, and for the remainder of the term of office of, the member whose death, resignation, retirement, disqualification or removal occasioned the vacancy.

(2) In the circumstances mentioned in subsection (1), and without prejudicing the Minister’s powers under that subsection, the Minister may appoint a person to act temporarily as a member of the Board. The duration of such an appointment, and the terms under which the person appointed holds office, shall be as the Minister determines at the time of appointment.

(3) Subject to this Act, NAMA may act notwithstanding one or more vacancies among the members of the Board.

Nomination and remuneration, etc., of Chairperson.

25 .— (1) The Minister shall nominate one of the appointed members as Chairperson.

(2) The Chairperson holds that office for 5 years or until the end (whether by the passage of time, resignation or removal under section 22 ) of his or her term of office as an appointed member, whichever is the earlier.

(3) A person may hold the office of Chairperson for 2 terms only, whether or not the terms are consecutive.

(4) The Chairperson may at any time resign that office (with or without also resigning as an appointed member) by letter addressed to the Minister. The resignation takes effect on the date specified in the letter or when the Minister receives the letter, whichever is the later.

(5) If the Chairperson dies, resigns, retires, becomes disqualified or is removed from office, the Minister shall nominate another person to fill the vacancy so occasioned. The person nominated may be an appointed member.

(6) In the circumstances mentioned in subsection (5), and without prejudicing the Minister’s powers under that subsection, the Minister may appoint a person to act temporarily as Chairperson. The duration of such an appointment, and the terms under which the person appointed holds that office, shall be as the Minister determines at the time of appointment.

(7) An appointment pursuant to subsection (5) may be for all or a specified part of the term of office of the person replaced.

(8) If the Minister proposes to nominate a person under subsection (5) who is not already an appointed member, the Minister may—

(a) appoint that person to the Board as an appointed member, even though doing so will cause the number of appointed members specified in section 19 to be exceeded, and

(b) nominate the person as Chairperson.

(9) The Minister may determine that the Chairperson shall be paid additional remuneration or allowances on account of his or her responsibilities as Chairperson.

Meetings of Board.

26 .— (1) The Board shall hold such meetings as are necessary for the performance of its functions.

(2) The Board shall hold its first meeting on the establishment day or as soon as is practicable after that day.

(3) The quorum for a meeting of the Board is 5, or, if there is a vacancy in the Board, 4 while the vacancy exists.

(4) A meeting held while there is a vacancy in the Board is validly held notwithstanding the vacancy, so long as there is a quorum.

(5) At a meeting of the Board—

(a) if the Chairperson is present, he or she shall preside over the meeting, and

(b) if the Chairperson is not present or the office of Chairperson is vacant, the appointed members present shall choose one of themselves to preside over the meeting.

(6) At a meeting of the Board each member present has a vote and any question on which a vote is required in order to establish the Board’s view on the matter shall be determined by a majority of votes of members present and voting on the question. In the case of an equal division of votes, the Chairperson or other member presiding over the meeting has an additional casting vote.

(7) Subject to this Act, the Board shall regulate, by standing orders or otherwise, its procedure and business.

Electronic meetings.

27 .— (1) In addition to meeting with all participants physically present, the Board may hold or continue a meeting by the use of any means of communication by which all the participants can hear and be heard at the same time. Such a meeting is referred to in this section as an “ electronic meeting ”.

(2) A member of the Board who participates in an electronic meeting is taken for all purposes to have been present at the meeting.

(3) The Board may establish procedures for electronic meetings (including recording the minutes of such meetings) in its standing orders.

Resolutions by circulation of copies.

28 .— (1) The Board may pass a resolution without a meeting being held if—

(a) all of the members entitled to vote on the resolution are given notice of the resolution, and

(b) a majority of them sign a document containing a statement that they are in favour of the resolution in the document.

(2) A resolution referred to in subsection (1) may be passed by the members or some of them signing separate copies of the document referred to in paragraph (1) (b) if the date and time of each signature is indicated on the document.

(3) A resolution passed in accordance with this section is taken to have been passed at the time when a majority of members entitled to vote on the resolution have signed, or have signed copies of, the document referred to in paragraph (1) (b).

Seal of NAMA, etc.

29 .— (1) The Board shall, as soon as possible after the establishment day, provide NAMA with a seal.

(2) The seal of NAMA shall be authenticated by the signature of any 2 members of the Board or in any other way that the Board resolves.

(3) Judicial notice shall be taken of the seal of NAMA. A document purporting to be an instrument made by, and sealed with the seal of, NAMA, and purporting to be authenticated in accordance with subsection (2), shall be received in evidence and be taken to be such an instrument unless the contrary is shown.

(4) The Board may, as the Board thinks fit, delegate the authority to enter into a contract or instrument that, if entered into by an individual, would not be required to be under seal.

Disclosure of interests.

30 .— (1) If a member of the Board has a pecuniary interest or other beneficial interest in, and material to, a matter that falls to be considered by the Board—

(a) he or she shall disclose to the other members of the Board the nature of his or her interest in advance of any consideration of the matter,

(b) he or she shall not influence nor seek to influence a decision to be made in relation to the matter,

(c) he or she shall take no part in any consideration of the matter,

(d) he or she shall absent himself or herself from the meeting or that part of the meeting during which the matter is discussed, and

(e) he or she shall not vote or otherwise act on a decision relating to the matter.

(2) If a member discloses an interest pursuant to subsection (1), the disclosure shall be recorded in the minutes of the meeting of the Board or otherwise duly recorded. The Board may, at its discretion, refer to the disclosure in NAMA’s quarterly report.

(3) If a member of the Board fails to disclose an interest pursuant to subsection (1), and with that member present the Board makes a decision on the matter, a contract entered into by NAMA in consequence of the decision is not, by reason only of that fact, invalid or unenforceable.

(4) If a member of the Board fails to disclose an interest pursuant to subsection (1), and with that member present the Board makes a decision on the matter, the decision is not invalid if the Board subsequently reconsiders the matter without that member present and confirms the decision. If the Board does so, the decision shall be taken to have always been valid.

(5) If at a meeting of the Board a question arises as to whether or not a course of conduct, if pursued by a Board member, would constitute a failure by him or her to comply with subsection (1), the Chairperson or member of the Board presiding over the meeting may determine the question. The Chairperson’s or presiding member’s decision is final. If such a question arises in relation to the Chairperson or person presiding over a meeting, he or she shall retire from the chair and the question shall be determined by majority vote of the remaining Board members. In either case particulars of the determination shall be recorded in the minutes of the meeting.

(6) If the Minister is satisfied that a member of the Board has contravened subsection (1), the Minister may, if he or she thinks fit, remove that member from office.

(7) The Board shall issue guidelines as to what constitutes an interest for the purposes of this section having regard to the definitions in the Ethics in Public Office Act 1995 .

Register of Board members’ interests.

31 .— (1) As soon as practicable after the establishment day, NAMA shall prepare a Register of Members’ Interests.

(2) By 31 January in each year—

(a) each member of the Board, each officer of NAMA who has been directed by the Board to do so and each director of each NAMA group entity shall give notice to NAMA of all of his or her registrable interests (within the meaning given by the Ethics in Public Office Act 1995 ), and

(b) NAMA shall ensure that each registrable interest so notified is entered in the Register of Members’ Interests.

(3) Part VI of the Ethics In Public Office Act 1995 applies in relation to a contravention of subsection (2) as that Part does in relation to a contravention of Part IV of that Act.

Audit committee, credit committee, finance committee and risk-management committee.

32 .— (1) As soon as practicable after the establishment day, the Board shall establish 4 committees, and shall (subject to subsection (2), in the case of the audit committee) appoint members to them, as follows:

(a) an audit committee;

(b) a credit committee;

(c) a finance committee;

(d) a risk-management committee.

(2) There shall be 6 members of the audit committee. The Minister shall appoint 2 members from among qualified persons who are not members of the Board, and shall determine the terms of their service on the Committee, including removal and resignation. The Board shall appoint the other 4 members from among the members of the Board.

(3) The Board shall not appoint the Chairperson or an ex-officio member of the Board as a member of the audit committee.

(4) The members of the credit committee, the finance committee and the risk-management committee shall be members of the Board or officers of NAMA. At least 2 members of each of those committees shall be members of the Board.

(5) A member of a committee (other than a member of the audit committee appointed by the Minister) established under subsection (1) serves on the committee concerned on such terms (including term of office, removal and resignation) as the Board determines.

(6) The Board shall determine the terms of reference and procedures of each committee established under subsection (1).

(7) With the approval of the Minister, NAMA, from its own resources, may remunerate a member of the audit committee who is not a member of the Board.

(8) The Board may dissolve a committee established under subsection (1). If the Board dissolves such a committee, the Board shall re-establish that committee as soon as practicable.

(9) Sections 27 and 28 apply in relation to a committee established under subsection (1).

(10) Section 30 applies in relation to a member of a committee established under subsection (1) who is not a member of the Board. For the purposes of that application—

(a) references to members of the Board shall be construed as references to members of the committee,

(b) references to the Board shall be construed as references to the committee, and

(c) guidelines made for the purposes of section 30 (7) apply with the modifications set out in paragraphs (a) and (b).

Other committees.

33 .— (1) The Board may establish—

(a) such advisory committees as it considers necessary or desirable to advise it in the performance of its functions, and

(b) such other committees and sub-committees as it considers necessary or expedient,

and may appoint members to such a committee as it considers necessary.

(2) A committee established under subsection (1) may include persons who are not members of the Board, but a majority of the members of such a committee shall be members of the Board.

(3) A member of a committee established under subsection (1) shall serve on the committee on such terms (including term of office, removal and resignation) as the Board determines.

(4) The Board shall determine the terms of reference and procedures of a committee established under subsection (1).

(5) With the approval of the Minister, NAMA, from its own resources, may remunerate a member of a committee established under subsection (1) who is not a member of the Board.

(6) Sections 27 and 28 apply in relation to a committee established under subsection (1).

(7) Section 30 applies in relation to a member of a committee established under subsection (1) who is not a member of the Board. For the purposes of that application—

(a) references to members of the Board are to be construed as references to members of the committee,

(b) references to the Board are to be construed as references to the committee, and

(c) guidelines made for the purposes of section 30 (7) apply with the modifications set out in paragraphs (a) and (b).

Indemnification of members of Board and officers of NAMA, etc.

34 .— (1) This section applies to the following persons:

(a) each member of the Board;

(b) each member of a committee established under section 32 or 33 ;

(c) each officer of NAMA;

(d) a director of a NAMA group entity;

(e) a member of the staff of the NTMA.

(2) Where the Board is satisfied that a person to whom this section applies has discharged the functions appropriate to that person in relation to the functions of NAMA in good faith, NAMA shall indemnify that person against all actions or claims however they arise in relation to the discharge by that person of those functions.

(3) The Board shall not be prevented from revoking an indemnity granted to, or recovering any payment made pursuant to such an indemnity from, a person who is subsequently found to have carried out his or her duties in bad faith.

Codes of practice.

35 .— (1) Within 3 months after the establishment day, NAMA shall prepare codes of practice for approval by the Minister in relation to the following matters:

(a) the conduct of officers of NAMA;

(b) servicing standards for acquired bank assets;

(c) risk management, including with regard to debtors;

(d) disposal of bank assets;

(e) the manner in which NAMA is to take account of the commercial interests of credit institutions that are not participating institutions;

(f) any other matter in relation to which the Minister directs NAMA to prepare a code of practice.

(2) A code of practice referred to in subsection (1) (a) shall set out—

(a) what constitutes misconduct in office for the purposes of section 43 ,

(b) the procedures for the investigation of an officer of NAMA suspected of misconduct, and

(c) the procedures for the suspension of such an officer from his or her duties for misconduct in office.

(3) After a code of practice is approved by the Minister, every person to whom it applies shall have regard to and be guided by that code in the performance of his or her functions and in relation to any other matters to which the code relates.

(4) If in the opinion of the Minister adequate provision has not been made in a code of practice drawn up by NAMA under subsection (1), the Minister may—

(a) direct NAMA to modify the code of practice, or

(b) substitute his or her own code of practice.

(5) NAMA shall publish a code of practice, issued under this section as approved by the Minister, on the NAMA website.

Application of certain provisions of this Chapter to directors of NAMA group entities.

36 .— (1) With the modifications set out in subsection (2), the following provisions of this Chapter apply in relation to directors of NAMA group entities:

(a) subsections (1), (2), (3) and (4) of section 22 ;

(b) section 30 .

(2) The modifications referred to in subsection (1) are—

(a) references to an appointed member shall be read as references to the director concerned,

(b) references to the Board of NAMA, or to members of that Board, shall be read as references to the directors of the NAMA group entity concerned, and

(c) the reference to NAMA in section 30 (3) shall be read as a reference to the NAMA group entity concerned.