SECTION OF
ADMINISTRATIVE LAW & REGULATORY PRACTICE

Ombudsman Committee

Section 1. Legislative Purpose
It is the intent of the Legislature to establish, in addition to other remedies or rights of appeal of any person under state law, an independent, impartial, state office, readily available to the public, responsible to the Legislature, empowered to investigate the acts of state [and local] administrative agencies and to recommend appropriate changes toward the goals of safeguarding the rights of persons and of promoting higher standards of competency, efficiency and justice in the administration of state [and local] laws.

COMMENT. This suggested section provides a concise description of the characteristics of the office and its goals.

If jurisdiction over political subdivisions of the state is included (see §3 (a) (4) comment), the phrase "and local" should be included.

Counsel must determine whether the inclusion of the phrase "and local" will be interpreted as pre-empting to the state jurisdiction over both state and local agencies and prevent local governmental units from establishing their own Ombudsmen.

Section 2. Short Title
This Act may be cited as "The ____________ [name of state] Ombudsman Act of ___________ [year]."

COMMENT. The title "Ombudsman" is both well publicized and distinctive in character. The American state experience has varied: Hawaii, "Ombudsman"; Nebraska, "Public Counsel"; and Iowa, "Citizen's Aide." But it should be noted that in Nebraska and Iowa the term "Ombudsman" is used by the public, the media, and even by the incumbents, who found that their original titles were easily confused with other very different offices and concepts.

If a term other than "Ombudsman" is selected, appropriate changes must be made throughout this Act.

However, the term "Ombudsman" should be used only when the legislation provides for an independent official who receives complaints against government agencies and who, after investigation, may, if the complaints are justified, make recommendations to remedy the complaints.

Section 3. Definitions
As used in this Act,
(a) "Agency" means any department, organization, board, commission, council, institution or other governmental entity of _____[name of state], and any official, officer, employee, or member thereof acting or purporting to act by reason of his connection with _________[name of state], except:

(1) any court, or judge and appurtenant judicial staff;

(2) the Legislature, its members, its committees, its staff and its employees;

(3) the governor and his personal staff;

[(4) (Alternate A) any political subdivision of the state;]

[(4) (Alternate B) mayors, council members, and judges of any political subdivision and their personal staffs;]

(5) any multi-state governmental entity.

(b) An "act of an agency" means any action, decision, failure to act, omission, rule or regulation, interpretation, recommendation, policy, practice or procedure of any agency.
(c) "Person" means any individual, aggregate of individuals, corporation, partnership, or unincorporated association.

COMMENT
(a) Rather than specifying by name those agencies under the Ombudsman's jurisdiction, the Act permits jurisdiction over all state related governmental operations and personnel (in pursuance of public function) with certain limited exceptions which should be minimized

(a) (1) An exclusion of the judicial branch rests on its traditional independence and immunity from investigation; its internal review mechanisms (e.g., judicial conference);its continuous review by the profession (viz.,Bar), and, in some states, its review by judicial commissions . The wording ('appurtenant judicial staff') and judicious experimentation and experience should permit review of those peripheral to the adjudication itself.

(a) (2) The Legislature--an independent policy making body; whose actions are conspicuous and subject to public scrutiny; whose tenure is subject to periodic popular review--is excluded. Committees and staff members who assist in policy formation are, likewise, excluded

(a) (3) Elected state officials (e.g., Lt. Governor, Treasurer) who deserve exclusion for the same reasons as (a) (2) above, may be added to (a) (3) but they must be distinguished from other elected state officials who should be included and who are less immediately involved in policy-making and are engaged chiefly in administrative matters indistin-guishable from those performed by non-elected officials generally. Thus, appropriate officials to be excluded may vary from state to state. Alternatively, this exclusion might read, "(3) elected constitutional officials and their personal staff ;".

(a) (4) Alternate A. Where local jurisdiction is not included, (a) (4) should read, "(4) any political subdivision of the state". Alternate B. If jurisdiction over a political division is included, Alternate B should be used to give an exclusion parallel to that for state officials, "[(a) (4) mayors, council members, and judges of political subdivisions and their personal staff]".

(a) (5) The specific exclusion of multi-state entities, such as regional transportation and planning authorities, and implicit exclusion of federal agencies (including the local offices thereof) as 'agencies' are limited to 'entities of the state', are based on practical and constitutional limitations on sovereign power of the state over such agencies.
(b) "Acts of Agency" is broadly defined.
(c) "Person" is defined broadly.

Section 4. Creation of Office
The office of Ombudsman is hereby established.

Section 5. Nomination and Appointment
(Alternate A)

The (insert name of legislative body) shall elect the Ombudsman by a two thirds vote of the members of each house present and voting

(Alternate B)
The Governor shall appoint the Ombudsman subject to confirma-tion by a two-thirds vote of the members of each house of the (insert name of legislative body) present and voting.

COMMENT. In foreign countries the Ombudsman has been elected by the legislature. This appears to be the method favored to date by the state legislatures which have adopted Ombudsman legislation Alternate A follows this pattern.

However, in view of the American tradition of appointment by the Chief Executive, Alternate B provides for such appointment, subject to confirmation by the legislature.

The American Bar Association Resolution on the Ombudsman sets forth both alternatives.

Section 6. Qualifications
(a) The Ombudsman and Deputy Ombudsman shall be persons of recognize: judgment, objectivity and integrity who are well-equipped to analyze problems of law, administration, and public policy.
(b) No person while serving as Ombudsman' Acting Ombudsman, or Deputy Ombudsman:

(1) shall be actively involved in political party activities;

(2) shall be a candidate for or hold other public office, whether elective or appointive;

(3) shall be engaged in any other occupation, business, or profession;

(4) shall remain in office after the last day of December in the year in which he reaches the age of seventy years.

COMMENT. The Ombudsman, Acting Ombudsman and Deputy Ombudsman should be full-time impartial experts in whom the public can have confidence.

(a) This subsection expresses succinctly the desirable traits of an Ombudsman, more clearly expressing the legislative intent than by merely listing restrictions on the official. Experience points to the desirability, of a legal background, but this section does not prevent the appointment of qualified individuals from other professions.

(b) (1-3) These provisions, while insuring that the Ombudsman's work is performed on a full-time basis, inhibit politicization of his office and conflicts of interest in his outside professional contacts (whether or not for profit).

While (b) (2) inhibits an Ombudsman's using the office as an immediate political steppingstone, some states have proposed to go further and to add a section reading, "shall not have served as a member of the Legislature for two years prior to his appointment and shall not serve as a member of the Legislature for three years following completion of the term for which he was appointed," which would prevent use of the office as a political plum as well. However, this would also unnecessarily prevent appointment of a highly qualified legislator, governor or judge; the appointment process should provide a sufficient screen against outright political favoritism.

(b) (4) This suggested section is parallel to the mandatory retirement requirement for judges in many states.

Section 7. Term of Office
The Ombudsman shall serve for a term of ____ years and until his successor is appointed and qualified. [(Alternate A) He may be reappointed for additional terms.] [(Alternate B) He may not be reappointed for additional terms.]

COMMENT. A long term is desirable: to permit the Ombudsman sufficient time to become proficient at his duties; to provide a measure of independence from politics; and to provide prestige and security to attract qualified people to the position. An excessively long term (e.g., 15 years) prevents the desired periodic accountability to the Legislature. The term should not be less than five (5) years. Either Alternate A or Alternate B should be used to make it clear the Ombudsman should be limited to one term only or may be reappointed for additional terms.

Section 8. Removal and Vacancy
(a) The Legislature by a vote of two-thirds of the members of each house present and voting may remove the Ombudsman or Acting Ombudsman from office, but only for mental or physical incapacity to perform the duties of his office for at least three months, or other grounds sufficient for removal of a judge from state court.
(b) If the position of Ombudsman becomes vacant for any reason, the Deputy Ombudsman. shall serve as Acting Ombudsman until an Ombudsman has been appointed for a full term.

COMMENT. (a) Removal is made difficult and for cause to prevent the sudden attacks or political threats against the office more likely to occur in this country without an Ombudsmanic tradition. Alternatively, this sub-section might provide that the Ombudsman, et al, could be removed from office according to state constitutional provisions for removal of judges or other public officials.

(b) In filling vacancies, full-term appointment is preferable to remainder-of-term appointment as it provides the desirable longer term of office.

Section 9. Compensation
The Ombudsman shall receive the same salary and benefits as the chief judge of the ________[highest court of state].

COMMENT. This high salary reflects the responsibility and prestige of the office and should be sufficient remuneration to attract qualified people. Rather than fixing the salary at a specific sum, which would shortly become obsolete (leading inevitably to legislative wrangling), it is pegged to a judge's salary and benefits (see §10 (c)). Of course, normal reimbursement of expenses is not included in compensation. If a specific dollar sum is desired, an additional provision is appropriate: "Compensation shall not be diminished during his tenure in office, unless by general law applying to all salaried officers of the State." Permitting a legislative committee or council to set salary and benefits--which might fluctuate with political moods-- is neither fair to applicants for the post, nor promotive of independence of the office, and may effectively abrogate stiff removal provisions (§8 (a)).

Section 10. Organization of Office

(a) The Ombudsman shall select, appoint and fix the compensation (within the amount available by appropriation) of a person as Deputy Ombudsman and may select, appoint and fix the compensation (within the amount available by appropriation) of such other officers and employees as he may deem necessary to discharge his responsibilities under this Act. All officers and employees of his office shall serve at the Ombudsman's pleasure.

(b) The Ombudsman may delegate to members of his staff any of his authority, powers, or duties except this power of delegation and his duty to make any report under this Act. However, the Ombudsman may authorize the Deputy Ombudsman to act in his stead during illness, absence, leave, or disability.

(c) The Ombudsman and his staff shall be entitled to participate in any employee benefit or retirement plan available to state employees.

COMMENT. (a) The experimental nature of the office and the close, personal relationship engendered in such a small staff implies the Ombudsman should be free of civil service and political constraints in staff selection and retention. The Ombudsman, however, should refer to civil service salary schedules in setting comparable salaries for staff, and would naturally use state accounting facilities for payment of such (cf., §11 (j)). The appointment of a Deputy Ombudsman is compulsory, while selection of other officials, including an Assistant Ombudsman or Ombudsmen, is optional.
(b) This same desire for flexibility should permit a broad delegation of powers. The Ombudsman, however, remains responsible for the organization of his office and for whatever reports leave the office (§16)--unless the Deputy Ombudsman has assumed his duties in his absence or when the office is vacant (§8 (b)). Rather than requiring within the text of the bill that such delegation be in writing, or that staff members take an oath of office, such matters should be left to the Ombudsman's discretion to impose, if found desirable, by regulation (§11 (b)).

Section 11. Powers
The Ombudsman shall have the following powers:

(a) to investigate, on complaint or on his own motion, any act of an agency without regard to its finality;
(b) to adopt, promulgate, amend and rescind rules and regulations required for the discharge of his duties--including procedures for receiving and processing complaints, conducting investigations, and reporting his findings--not inconsistent with this Act. However, he may not levy any fees for the submission or investigation of complaints;
(c) to examine the records and documents of any agency;
(d) to enter and inspect without notice the premises of any agency;
(e) to subpoena any person to appear, to give sworn
testimony or to produce documentary or other evidence that is reasonably material to his inquiry;
(f) to undertake, participate in or cooperate with persons and agencies in such conferences, inquiries, meetings, or studies as might lead to improvements in the functioning of agencies;
(g) to obtain such information and make such inquiries from any agency or person as he shall require for the discharge of his duties;
(h) to maintain secrecy in respect to all matters and the identities of the complainants or witnesses coming before him;
(I) to bring suit in _________[name of court] to enforce the provisions of this Act;
(J) to establish and administer a budget for his office;
(k) to concern himself with strengthening procedures and practices which lessen the risk that objectionable administrative acts will occur.

COMMENT. Powers are enumerated for clarity; additional powers of staff selection and compensation and delegation of these powers are contained in §10.

(a) His investigatory power is limited to acts of an agency (§3 (b)). As he can act on complaint regardless of source, he can receive anonymous or oral complaints, though his regulatory powers (subsection (b)) permit him to require complaints in writing if experience dictates. His power to investigate on his own motion is most applicable when others are unwilling to come forward (see (c) below).

(b) This broad, internal regulatory provision is relevant to many provisions in this bill. To insure accessibility (and avoid discrimination against the poor), charging of fees for his service is forbidden.

(c-d) The Ombudsman has the power to inspect any agency without notice, as advance notice might negate the value of such a visit. Such visits might provide subjects for investigation on his own motion.

(e) Protections and privileges for witnesses, regardless of whether or not they have been subpoenaed, are provided in §18. §11 (I) and 19 provide means of compelling compliance. Implicitly, he and his staff are empowered to administer oaths to such witnesses.

(f) Though most of his time will be preoccupied with individual complaints, he can embark on such studies of a general nature as may improve the efficiency of agency work--alone or with other governmental bodies or non-governmental research enterprises.

(g) There is no requirement of formal hearings of an adversary nature. If a proceeding for the taking of testimony were in fact to occur, it should be perceived as an element of an investigation rather than a proceeding in the nature of a trial. Hence its content need not be the same as would normally be demanded in a formal adjudication hearing.

(h) This suggested subsection expresses the desirability of maintaining confidentiality in the Ombudsman's investigations.

(i) The office of Ombudsman may bring suits: for a declaratory judgment to obtain jurisdiction (under §§3 (a) and 11 (a)); to enter and inspect agencies (§11 (d)); to show cause for not appearing after subpoenaed (§11 (e)); to enforce confidentiality provisions (§§l3 (d,e); and to prosecute for willful obstruction or non-compliance (§19).

(j) A provision for budgetary powers may be necessary in some states, useful in others, to insure that the Ombudsman's budget is independent of outside (agency) administration.

(k) The Ombudsman should seek to prevent problems before they occur.

Section 12. Investigation of Complaints

(a) The Ombudsman shall investigate any complaint alleging that an act of an agency is:

(1) contrary to or inconsistent with law, regulation or agency practice; or

(2) based on mistaken facts or irrelevant considerations; or

(3) inadequately explained when reasons should have been revealed; or

(4) inefficiently performed; or

(5) unreasonable, unfair, or otherwise objectionable, even though in accordance with law;

(b) unless he in his discretion decides not to investigate because:

(1) the complainant could reasonably be expected to use another remedy or channel, and then the Ombudsman shall furnish the complainant with written instructions on the procedural steps to be taken in connection with such other remedy or channel;

(2) the complaint is trivial, frivolous, vexatious, or not made in good faith;

(3) the complaint has been too long delayed to justify present examination;

(4) his resources are insufficient for adequate investigation in which case the Ombudsman shall refer the complaint to the proper legislative committee and the Governor.

(c) The Ombudsman in his discretion may investigate any act of an agency not enumerated in (a).

(d) The Ombudsman's declining to investigate a complaint shall not bar him from reviewing on his own motion acts of an agency whether or not included in the complaint.

COMMENT. (a), (b) and (c). The Ombudsman has the duty to investigate any complaint which alleges the acts of an agency enumerated in (a) but has the discretion to decline to investigate for reasons stated in (b). He is not limited to the type of problems enumerated in (a) and has the discretion under (c) to investigate any act of an agency not enumerated in (a).

(b) Paragraph (b) (1) reiterates that the Ombudsman is not a substitute for agency's internal complaint procedures, nor can he be expected to absorb all the complaints that agencies generate. Citizens would normally exhaust such avenues before approaching the Ombudsman; however, the Ombudsman can waive this exclusion whenever he believes that he may provide a faster and more just method of review. Paragraph (b) (3) provides a flexible statute of limitation which the Ombudsman may determine by regulation (§11 (b)). Paragraph (b) (4) rechannels those complaints too ambitious or time consuming (e.g., complex local complaints) for effective investigation.

(d) A series of complaints, though themselves inappropriate for investigation, may reveal acts which should be investigated on the Ombudsman's own motion.

Section 13. Rights of Complainant--Communication With Complainant
(a) After the Ombudsman has decided whether or not to investigate a complaint, he shall suitably inform the complainant.
(b) The Ombudsman shall, if requested by the complainant, report the status of his investigation to the complainant.
(c) After investigation of a complaint, he shall suitably inform the complainant of his conclusion or recommendation and, if appropriate, any action taken or to be taken by the agency involved.
(d) A letter to the Ombudsman from a person held in custody--including by detention, incarceration and hospitalization--by an agency shall be forwarded immediately, unopened to the Ombudsman. A letter from the Ombudsman to such person shall be immediately delivered, unopened to the person.
(e) No person who files a complaint pursuant to this Act shall be subject to any penalties, sanctions or restrictions in connection with his employment because of such complaint.

COMMENT .
(a), (b) & (c) These sub-sections give the Ombudsman a general duty to inform the complainant of the status of his complaint. The experience and judgment of the Ombudsman will determine the suitable response to be made.
(e) This sub-section provides assurance that there will be no reprisals for filing complaints.

Section 14. Rights of Agency
(a) If the Ombudsman decides to investigate a complaint, he may, if he deems it appropriate, suitably inform the agency involved.
(b) Before announcing or reporting a conclusion or recommendation that criticizes or is adverse to an agency, the Ombudsman shall consult with that agency and permit the agency reasonable opportunity to reply.
(c) If any report that he issues criticizes or is adverse to an agency the Ombudsman shall include any brief statement the agency may provide.

COMMENT.
(a), (b) & (c) These subdivisions insure that the Ombudsman has the views of the affected agency in mind to guard against oversight and bias. Under (a) it is discretionary with the Ombudsman to give notice to an agency before investigating a complaint and such notice will depend upon whether it will aid or hinder investigation; (b) further protects the agency by giving it reasonable time to reply to criticism. (c) In his special, general interim, and annual reports (116), the Ombudsman is required to provide the agency's rebuttal (if any). Rather than permitting the Ombudsman to summarize the agency's reply, the agency has been limited to a "brief" statement which shall be printed unedited (regulations as to what is "brief" might be promulgated under §11

Section 15. Recommendations

(a) If, after investigation, the Ombudsman is of the opinion that an agency should:

(1) consider the matter further,

(2) modify or cancel an act,

(3) alter a regulation, practice, or ruling,

(4) explain more fully the act in question,

(5) rectify an omission, or

(6) take any other action,

COMMENT.
(a) Though the Ombudsman will rarely have reason to make a recommendation if he does not find an error in what the agency has done or neglected to do, he should remain free to suggest improvements in method or policy even when the existing practice may be legally permissible. Thus he may facilitate one agency's learning about and taking advantage of the experience of another. This sub-section contemplates no entry of judgment, as it were, but simply the expression of opinion by the Ombudsman. He is not a superior official, in a position of command. He cannot compel a change in an administrative act. His recommendation may, however, induce an agency to exercise whatever power it itself may still possess to right what the Ombudsman points out as a past mistake.
(b) The Ombudsman's duty extends beyond simply finding that an administrator acted in accord with existing statutory law; if the law itself produces unjust results, he should bring this to legislative notice. He is not meant to be a general social reformer, but he does have an obligation to take note of statutory provisions that cause unexpectedly harsh administration.
(c) In Sweden the Ombudsman has power to prosecute miscreant officials. Here the Ombudsman has the duty of forwarding pertinent allegations to the appropriate agency, civil service office, or the attorney general. As such reporting might be construed under §14 (a) to require informing the person of such allegations--which, prematurely, might hinder adequate investigation--he is empowered to do this without notice to the individual involved. If the individual has testified before the Ombudsman, such testimony would bear the same privileges as testimony in court (§18).

Section 16. Reports
The Ombudsman may from time to time and shall annually report on his activities to the Governor, to the Legislature, or any of its committees, to the public and, in his discretion, to agencies.

COMMENT. Bringing his moves into the open is the Ombudsman's sole means of gaining the public's support. Under this section, he may publish his recommenda-tions in separate special reports or he may issue general interim reports in his discretion. The annual report, whose release date would be set by the Ombudsman (Paragraph 11 (b)) is mandatory. He need not identify individuals in his report (§ll (h)), but must reprint brief replies of agencies which he criticizes (§14 (c)).

Section 17. Ombudsman's Immunities
(a) No proceeding, conclusion, recommendation, or report of the Ombudsman or member of his staff shall be reviewable in any court;
(b) The Ombudsman and his staff shall have the same immunities from civil and criminal liabilities as a judge of this state.
(c) The Ombudsman and his staff shall not be compelled to testify or produce evidence in any judicial or administrative proceeding with respect to any matter involving the exercise of their official duties except as may be necessary to enforce this Act.

COMMENT. (a) Sub-section (a) precludes judicial review of the Ombudsman's work, unless, of course, he has violated the Act.
(b) This sub-section avoids litigation and harassment by an uncooperative agency, but does not preclude prosecution for serious misconduct, or removal from office (§8 (a)).
(c) This sub-section acts with §11 (h) to protect the secrecy and confidentiality of information obtained--in order to instill public confidence in his work; it also prevents unnecessary interruptions of his work to testify, while allowing him to proceed in court whenever necessary (§11 (I)).

Section 18. Witnesses' Privileges
Any person required to provide information under this Act shall be paid the same fees and travel allowances and accorded the same privileges and immunities, including right of assistance of counsel, as witnesses whose attendance has been required in the [name of court] ~

COMMENT. Although nearly all testimony will be in private and confidential, witnesses required to testify (whether or not by subpoena) are given judicial privileges and immunities. A provision that, "However, a representative of an agency during business hours shall not be entitled to such fees and allowances" might be included to avoid possible double payment of public servants during working hours.

Section 19. Obstruction
Any person who willfully obstructs or hinders the proper and lawful exercise of the Ombudsman's powers, or willfully misleads or attempts to mislead the Ombudsman in his inquiries' shall be subject to a fine of not more than one thousand dollars ($1,000.00).

COMMENT. Counsel must determine in each state whether necessity exists for indicating the court in which proceedings are to be brought and upon whose initiative

Section 20. Relation to Other Laws
The provisions of this Act are in addition to and do not in any manner limit or affect the provisions of any other enactment under which any remedy or right of appeal is provided for any person, or any procedure is provided for the inquiry into or investigation of any matter. The powers conferred on the Ombudsman may be exercised notwithstanding any provision in any enactment to the effect that any administrative action shall be final or unappealable.

Section 21. Appropriation
The sum of $____, or so much thereof as may be necessary, is hereby appropriated out of the general funds of the State for the fiscal year ending _____ for the purpose of carrying out this Act.

COMMENT. This section should be included where required by the fiscal regulations or practice of the state. If inclusion of such section is not necessary, its omission is recommended.

Section 22. Effective Date
This Act shall take effect immediately upon enactment.

COMMENT. The Act really becomes effective only after appropriation has been made and an Ombudsman has taken office.

Section 23. Severability
If any part of this Act shall be declared invalid, all other parts shall remain in full force and effect; the provisions of this Act are declared to be severable.