Tony O’Brien approved for US role on basis firm not engaged with HSE

The Department of Health was informed in January by Health Service Executive director general Tony O'Brien that his membership of a board of a US company would take up five hours per month and he would travel to California in April and July for board meetings during his annual leave.

He said he would receive $65,000 per year in directors’ fees “exclusive of stock participation options”.

The department on Friday released the background files on the approval for the appointment.

The Irish Times had originally sought correspondence between the Minister and Mr O'Brien last July. While some material was released at the time, the letters regarding Mr O'Brien's application for consent to take up a role in a private company were not included nor was reference to them included in the list or schedule of records that came within the scope of the request . The Department of Health said this week this had been due to an administrative error.

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The Irish Times reported on Wednesday that Mr O'Brien had been permitted to take up a position on the board of San Diego-based company Evofem Biosciences while still running the HSE. Approval was granted by both Minister for Health Simon Harris and the secretary general of the Department of Health.

He received official approval on the basis that the company operated outside of the State, had no products on the Irish market and did not engage in business with the HSE.

Mr Harris also told Mr O’Brien that should a conflict of interest arise or should the role impact on his work as director general of the HSE, he was reserving the right to review his consent for Mr O’Brien to take up the role.

Leave of absence

On foot of strong criticism from the Opposition, Mr O’Brien agreed on Thursday to take leave of absence from the board of the US company until his contract with the HSE expires in July.

The correspondence shows Mr O’Brien wrote to Mr Harris on May 24th last year citing terms in his contract and seeking consent to accept an appointment as a non-executive director of a commercial business based outside the State. He said the company was concerned with research and development and was “neither competitive with or engaging in business with the HSE”.

He said normal directors’ fees would be paid and he would carry out the work in his own time.

Mr Harris replied on June 6th giving his consent in principle for the move. He sought details on the company involved, the estimated time commitment and the fees to be paid.

“Finally having regard to the onerous responsibilities associated with the position of director general of the HSE, I am reserving the right as Minister for Health to review this consent should it transpire that your work as director general is negatively impacted by this engagement or should a conflict of interest arise at any state in the future,” Mr Harris wrote.

FDA approval

On December 7th, Mr O'Brien wrote to the secretary general of the Department of Health, Jim Breslin, saying he would shortly be appointed to the US company board. He said it was a non-for-profit company funded by USAid – the United States agency for international development – and the Buffett Foundation.

A handwritten note on the department file says the company had no products with FDA approval “and therefore nothing on the Irish market is particularly relevant” .

Mr Breslin wrote to Mr O’Brien on December 20th confirming approval for the position

Fianna Fáil leader Micheál Martin maintained in the Dáil that Mr Harris had made a serious error in giving his consent for the move. "I do not believe one can be director of the HSE and a member of the board of a health product manufacturer."

The US firm’s public statements indicated Mr O’Brien would be entitled to an “annual cash retainer” of $50,000, additional cash fees of $15,000 and initial share-buying options worth $180,000 vesting over a three-year period with further annual options of $90,000.