APPENDIX:

ANNOTATED MODEL OMBUDSMAN STATUTE

This paper is exempted from the copyright regulations applied to the other chapters in the volume. No permission is necessary for reproducing all or parts of the statute. However, it is requested that users notify The American Assembly of their intention.

What follows is a “model” bill to establish the ombudsman system in American states and cities. The bill can be adapted to the needs of various states with little change. It is also suitable as a local enactment by a municipality that has a constitutional or statutory authority to create its own governmental instrumentalities. The extent of allowable home rule must, of course, be considered closely by local counsel.

This draft builds upon foundations others have laid. Ralph Nader drafted the first ombudsman bill for consideration by an American legislature; it was introduced in Connecticut in 1963. The first model bill was creditably prepared by the Harvard Student Legislative Research Bureau Both of the proposals leaned heavily on the New Zealand ombudsman statute of 1962, which itself had been helpful, notably Senator Edward V. Long’s bill to establish a District of Columbia ombudsman and the bill of Senator Jack E. Bronston and Assemblyman S. William Green to create an office of public redress in the State of New York.

A BILL
To establish the Office of Ombudsman
in……………………….
[Enactment clause in locally appropriate form]

Section 1. Short title. This Act may be cited as The ………..[insert name of state, city, or other entity] Ombudsman Act.

Comment. The “foreign-sounding word” ombudsman has gained wide usage in America and many other countries. Its distinctiveness makes it preferable to more usual official titles such as “commissioner” or “director.” The position, new American experience, deserves a new identification.

(a) “Administrative agency” means any department or other governmental unit, any official , or any employee of ……[state, city, or other entity involved] acting or purporting to act by reason of connection with……..[again insert name of state, city, or other entity]; but it does not include (1) any court or judge or appurtenant judicial staff, (2) the members, committees, or staffs of the …….[insert name of the legislative body, e.g., City Council] or (3) the …….. [insert title of chief executive] or his personal staff.

Comment. Traditional immunization of courts against extra-judicial scrutiny argues against permitting an American ombudsman to inquire into a judge’s behavior. Legislators and the chief executive are directly answerable to the electorate; their conduct in office tends in any event to be conspicuous and subject to continuous political examination. Other elected officials (such as, in some jurisdictions, members of regulatory bodies, law enforcement officials, and educational administrators) are less immediately involved in policy making and are engaged chiefly in administrative matters indistinguishable from those performed by non-elected officials generally. Their inclusion within the reach of the Ombudsman Act therefore seems desirable.

If a state bill were to be drafted, a fourth exception should be considered, as follows: “(4) any instrumentality of any political subdivision of the state.” This would make clear that the state ombudsman should avoid dealing with municipal and county affairs, if state superintendence of local officialdom is deemed undesirable. In a state-wide bill prudence may dictate a fifth specific exclusion to make indisputable that interstate bodies such as the Port of New York Authority or the Delaware River water resources board are not meant to be reached, though this specificity is perhaps not really needed: “(5) any instrumentality formed pursuant to an interstate compact and answerable to more than one state.”

(b) “ Administrative act” includes every action (such as decisions, omissions, recommendations, practices, or procedures) of an administrative agency.

Section 3. Establishment of office. The office of Ombudsman is hereby established as an independent agency of ……..[insert name of state, city, or other entity].

Comment. Whether the Ombudsman can be a wholly independent entity or must instead be included within the Executive or the Legislative Branch depends upon the local constitution or charter. Organizational detachment is the desired estate if it can be achieved constitutionally.

Section 4. Appointment. The ………[insert title of chief executive] shall appoint the Ombudsman, subject to confirmation by two-thirds of the members of each chamber of the…….[insert name of the legislative body] present and voting.

Comment. In foreign countries the ombudsman has been elected by the legislature. The governmental structure in those countries differs, however, from the American pattern. Appointive officials, whatever their nature, are customarily chosen in American jurisdictions by the Chief Executive, subject sometimes to legislative confirmation. The present proposal contemplates confirmation by an unusually substantial vote in both chambers (if two exist) rather than in the Senate alone. This is intended to stress the “non-political” nature of the appointment and to reflect the need for the general acceptability of the person chosen. Whether the required majority be two-thirds of those voting or some other figure can, of course, be fixed in accord with local preference or precedent.

Some persons favor direct legislative selection, without participation by the Executive. Thus, a Florida bill proposes simply that the ombudsman is to be “appointed by agreement of the president of senate and the speaker of the house subject to confirmation by a majority of the members of each chamber of the legislature.” A Connecticut bill provides that one or more candidates “shall be selected by the judiciary committee and reported to the general assembly,” after which the ombudsman is to be “elected by a vote of either a majority of each major political party or a two-thirds majority of the general assembly.” A more elaborate plan has been advanced in California. It envisages a “Joint Legislative Committee on Administrative Justice” composed of three members of each house from both political parties. From a list prepared by a blue ribbon commission, the committee is to nominate the ombudsman by an absolute vote, and the nominee is to be “appointed to the office of Ombudsman by concurrent resolution of the Legislature.”

All the plans emphasize the desirability of “de-politicalizing” the selection process.

The California plan contemplates that the joint committee will have a continuing existence and will be available for consultation by the ombudsman “as he deems necessary to the execution of his powers and duties.” No matter how the office of Ombudsman may be filled, some such provision in the legislature’s own internal organization would be desirable so that the ombudsman can have a regular point of contact when needed.

Section 5. Qualifications. The Ombudsman shall be a person well equipped to analyze problems of law, administration, and public policy, and shall not be actively involved in partisan affairs.

Comment. Efforts to define the qualities sought in an ombudsman tend to result in a catalogue of human virtues, leading one person to remark that if ever such a man were found, he would instantly be cast in bronze rather than appointed to a mundane office. Experience abroad points clearly to the desirability of the ombudsman’s having a legal background because he must deal with many grievances that hinge on analysis of statues and rulings. Requiring persons (for example, those who have recently been legislators or have held other office) seems undesirable. The consensus of opinion that will presumably support legislative confirmation should be an adequate barrier against unsuitable nominees.

Section 6. Term of office.

(a) The Ombudsman shall serve for a term of five years, unless removed by vote of two-thirds of the members of each of the two chambers of the …..[insert name of legislative body] upon their determining that he has become incapacitated or has been guilty of neglect of duty or misconduct; Comment. The Ombudsman should be secure, but not absolutely untouchable. The proposed provision would adequately guard against casual threats. An alternative would be to provide simply that the Ombudsman shall serve out his term, unless “impeached by the [legislature] in accord with the procedures prescribed by the constitution.” The likelihood of removal is extremely slim, in any event.
(b) If the office of Ombudsman becomes vacant for any cause, the Deputy Ombudsman shall serve as Acting Ombudsman until an Ombudsman has been appointed for a full term.

Comment. Whether the term of office should be more or less than five years is not demonstrable. Abroad, no term exceeds four years. Here, some persons believe that the detachment of the Ombudsman from the Chief Executive will be accentuated if a vacancy does not automatically coincide with the inauguration of a new mayor or governor. Some advocate an even longer term than five years. The length of the term is not very important. If the institution proves its worth, tinkering with the Ombudsman’s independence would be so politically perilous as to be altogether unlikely. To guard against sudden attacks upon an incumbent, removability should be made difficult, as has been done in this draft. As for vacancies, a stopgap until a permanent appointment can be made for a full term is preferable to an appointment merely for the balance of the unexpired term, as others have sometimes suggested.

In New Zealand the incumbent Ombudsman continues serving beyond the expiration of his term, unless and until a successor has qualified. Although this assures continuity of Ombudsman services, it means that the hold-over Ombudsman has no security of tenure, a circumstance that may at least theoretically expose him to undesirable pressures.

Section 7. Salary. The Ombudsman shall receive the same salary, allowances, and related benefits as the chief of the highest court of ………[name of state]

Comment. Setting the Ombudsman’s pay and perquisites at the level of the highest ranking judge will give the new office a desirably high prestige, will eliminate wrangling now and in the future about the appropriate dollar amount of the Ombudsman’s salary, and will avoid the obsolescence that would soon occur if the desired salary were to be precisely stated. If the Ombudsman is connected with a governmental subdivision rather than with the state itself, some other comparison would be appropriate.

Section 8. Organizations of office.

(a) The Ombudsman may select, appoint, and compensate as he may see fit (within the amount available by appropriation) such assistants and employees as he may deem necessary to discharge his responsibilities under this Act;
(b) The Ombudsman shall designate one of his assistants to be the Deputy Ombudsman, with authority to act in his stead when he himself is disabled or protractedly absent;
(c) The Ombudsman may delegate to other members of his staff any of his authority or duties under this Act except his power of delegation and the duty of formally making recommendations to administrative agencies or reports to the ……[insert title of chief executive] or the ……….[insert name of legislative body].

Comment. This section gives the Ombudsman a free hand in staffing his office, without even the restraints of civil service and classification acts. The highly personal nature of the Ombudsman’s work, coupled with its essentially experimental nature, justifies giving this leeway to so highly placed and, by hypothesis, responsible an official. For the same reasons the Ombudsman has been given a free choice about assigning duties and subdelegating powers, with the single limitation that when criticisms or proposals for change are to be voiced in a formal manner, only the Ombudsman himself may be heard (except when the Deputy Ombudsman is in full charge during the Ombudsman’s disability or protracted absence).

Section 9. Powers. The Ombudsman shall have the following powers:

(a) He may investigate, on complaint or on his own motion, any administrative act of any administrative agency;

Comment. The power to investigate should be stated unqualifiedly, though later sections will indicate the grounds that justify action by him and will thus suggest the occasions on which investigation would be suitable. Experience abroad shows that efforts to define jurisdiction have caused much laborious and essentially unproductive hairsplitting; a more general grant of power to investigate will eliminate some “legalistic” analysis in the beginning of the Ombudsman’s work, but his own discretion will lead him to set sensible boundaries to the areas within which he will investigate, lest he be crushed by the burden of unproductive work.

(b) He may prescribe the methods by which complaints are to be made, received, and acted upon; he may determine the scope and manner of investigations to be made; and, subject to the requirements of this Act, he may determine the form, frequency, and distribution of his conclusions and recommendations;?

Comment. Some foreign statutes require that complaints be written. Leaving matters of this kind to the Ombudsman’s choice in the light of experience is preferable. Similarly, giving the Ombudsman power to shape his own investigations is desirable; any implication that he should utilize the same method at all times should be avoided, as should any requirement of formal hearing 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 as a proceeding in the nature of a trial. Hence its content need not necessarily be the same as would normally be demanded in a formal adjudicatory hearing.

(c) He may request and shall be given by each administrative agency the assistance and information he deems necessary for the discharge of his responsibilities; he may examine the records and documents of all administrative agencies; and he may enter and inspect premises within any administrative agency’s control.

Comment. Experience elsewhere suggests that the Ombudsman will be given ready access to official papers or other information within the administrative agency. Cooperative working relationships have been readily established so that the Ombudsman’s need for documentary material has not conflicted with the administrators’ continuing need to use the same material. As for inspection of administrative offices and installations, this draft gives the Ombudsman power to inspect but imposes no duty to do so routinely, as has been required of the Ombudsmen in several Scandinavian countries.

(d) He may issue a subpoena to compel any person to appear, give sworn testimony, or produce documentary or other evidence the Ombudsman deems relevant to a matter under his inquiry.

Comment. Every existing Ombudsman statute provides very broadly for the use of compulsory process in order to obtain needed information. In point of fact, however, the subpoena power has virtually never been used abroad, since information has been freely given. Concern has nevertheless been expressed in this country that wide-ranging inquiries into public administration might lead to burdensome demands. Hence Section 18, below, takes pains to stress protections for witnesses, even though the occasions for bringing them into play are likely to be very few indeed.

(e) He may undertake, participate in, or cooperate with general studies or inquires, whether or not related to any particular administrative agency or any particular administrative act, if he believes that they may enhance knowledge about or lead to improvements in the functioning of administrative agencies.

Comment. If foreign experience is an accurate guide, work on individual complaints will chiefly preoccupy the Ombudsman’s energies and attention. Nonetheless, he should be clearly empowered to address himself to general problems (some of which, indeed, may not be reflected at all in current complaints) and should be free to work not only with other governmental bodies, but also with non-governmental research enterprises which, in the United States much more than in most other countries, provide a great deal of the manpower, insight, and enthusiasm that underlie governmental improvements.

Section 10. Matters appropriate for investigation. (a) In selecting matters for his attention, the Ombudsman should address himself particularly to an administrative act that might be 1) contrary to law or regulation;
2) unreasonable, unfair, oppressive, or inconsistent with the general course of an administrative agency’s functioning;
3) mistaken in law or arbitrary in ascertainments of facts;
4) improper in motivation or based on irrelevant considerations;
5) unclear or inadequately explained when reasons should have been revealed;
6) inefficiently performed; or
7) otherwise objectionable; Comment. The statute desirably details the kinds of administrative acts whose occurrence has chiefly generated demands for the Ombudsman system. This draft sets forth as guides, not as limitations. The Ombudsman is told to devote himself to these types of problems, but he need not feel himself confined to them if the catalog later be found to be incomplete.

Subdivision (3) refers to acts that rest on arbitrary ascertainments of fact. Very clearly, the Ombudsman must not attempt to be a super-administrator, doing over again what specialized administrators have already done and, if he disagrees, substituting his judgment for theirs. In some instances, however, the propriety of an administrative act may rest wholly on a factual determination that in turn rests on an excessively flimsy foundation. As in cases that go to courts for review, the Ombudsman should not regard “arbitrary” anything and everything with which he disagrees; but he should be in a position to say, in essence, that reasonable men would not have found the facts in the way the administrator did.

Subsection (5) is not intended to create a new legal requirement that findings of fact and conclusions of law accompany every administrative act. It means merely that official actions should be understandable and, usually, should be explained when those affected by them seek fuller understanding. Experience abroad shows that this is one of the areas most fruitfully cultivated by Ombudsmen.

Subsection (6) refers to administrative acts that may lie within the zone of legality, but might nevertheless be subject to improvement in the future. Thus, for example, the form of decision given by a Scandinavian administrator to old age pensioners caused later distress because the pensioners read into it some hopes that were not in the decisions that had been made, but suggested some purely stylistic changes that eliminated the bewildering “officialese” previously in use.

Subsection (7) uses a catch-all phrase, “otherwise objectionable.” This will perhaps emphasize the Ombudsman’s concern with such matters as rudeness and needless delay, both of which bulk large among citizens’ grievances.

(b) The Ombudsman may concern himself also with strengthening procedures and practices which lessen the risk that objectionable administrative acts will occur.

Comment. Subparagraph (b) makes clear that the Ombudsman should have a large and continuous interest in “preventive medicine” rather than solely in trying to abate a difficulty after it has arisen.

Section 11. Action on complaints. (a) The Ombudsman may receive a complaint from any source concerning an administrative act. He shall conduct a suitable investigation into the things complained of unless he believes that

1) the complaint has available to him another remedy or channel of complaint which he could reasonably be expected to use;
2) the grievance pertains to a matter outside the Ombudsman’s power;
3) the complainant’s interest is insufficiently related to the subject matter;
4) the complaint is trivial, frivolous, vexatious, or not made in good faith;
5) other complaints are more worthy of attention;
6) the Ombudsman’s resources are insufficient for adequate investigation; or
7) the complaint has been too long delayed to justify present examination of its merit.

The Ombudsman’s declining to investigate a complaint shall not, however, bar him from proceeding on his own motion to inquire into the matter complained about or into related problems;

Comment. The duty to act on every complaint should not be imposed, partly because the dimensions of the work burden cannot be exactly predicted and partly because some complaints will show on their face that they are unlikely to lead to productive findings. The above listing leaves the Ombudsman free to reject complaints, but does not bar his making inquiries. Specifically, he need not reject a complaint because another judicial or administrative remedy exists. Normally, one may suppose, the Ombudsman will insist that matters proceed through regular channels. Explaining to a complainant the steps he can take to obtain review will usually suffice. But assuredly some cases will arise in which the burdens of expense and time are realistic barriers to a complainant’s pursuing the theoretically available remedies. In those instances access to the Ombudsman should not be precluded. Subsection (1) leaves the avenue open, but the traffic is still subject to control.

Another policy choice is reflected in Subsection (3) which does not require that every complaint be based on a claimed invasion of a strictly personal interest. This permits a complainant to bring to the Ombudsman’s notice a matter of public rather than purely private concern. But if the complainant’s concern with the subject matter is too attenuated, the Ombudsman may choose not to investigate.

Subsection (7) does not contain an explicit “statute of limitations” on complaints, though the Ombudsman is left free to reject those based on stale claims or ancient grudges. In Sweden complaints must be acted on if filed within ten years of the events in question; Denmark, New Zealand, and Norway, by contrast, require rejection of any complaint pertaining to occurrences beyond the preceding twelve months. Neither extreme seems desirable. The present draft lays down no rule in this respect, but allows the Ombudsman to pick his way at the outset. Later, in the light of experience, he may wish to promulgate some rules of his own, as is allowed by Section 9 (b), above.

(b) After completing his consideration of a complaint (whether or not it has been investigated) the Ombudsman shall suitably inform the complainant and, when appropriate, the administrative agency or agencies involved.

Comment. A decision not to investigate a complaint does not mean that it has been altogether ignored. For example, the Ombudsman and the agency involved may regard the complaint as an adequate equivalent of a petition for administrative review of which the complainant has not yet availed himself; the Ombudsman may in such a case simply forward the complaint to the appropriate appellate authority, advising the complainant that this has been done in his behalf. In other instances very extensive legal analysis may be taken preliminarily, leading to the conclusion that no grievance could be found to exist. In such a case the Ombudsman may be expected to write an explanatory opinion that, if foreign experience is duplicated in this country, will in the generality of instances prove wholly persuasive to the complainant. Flatly requiring the Ombudsman to state reasons whenever he decides not to investigate should, however, be avoided. Numerous complaints show on their face that they are psychopathic rather than governmental in nature. The Ombudsman’s judgment must be relied upon to determine the suitable response in those instances. All practicing Ombudsmen do in fact take great pains to communicate fully and frankly with complainants, in general. This is particularly true as to cases whose merits have been explored. The Ombudsman’s findings and reasoning have powerfully shaped public opinion as well as official attitudes. Conclusions adverse to a complainant’s position deserve to be well explained, as has been done consistently by all foreign Ombudsmen.

Some proposals have explicitly required that if a complaint has reached the Ombudsman through a member of the legislature, the Ombudsman must report his findings and recommendations (if any) to the legislator who had forwarded his constituent’s complaint. Undoubtedly the Ombudsman, guided by ordinary tact and prudence, would routinely furnish to legislative intermediaries copies of his explanations to complainants and affected officials; making statutory provision for simple courtesy seems unnecessary. If anything more is intended by the suggested requirement that the Ombudsman “report” to a legislator who has forwarded a constituent’s complaint, the requirement should be resisted. The Ombudsman should not be perceived as a staff aide whose activities may be directed by individual legislators, to whom he must then report back.

(c)A letter to the Ombudsman from a person in a place of detention or in a hospital or other institution under the control of an administrative agency shall be immediately forwarded, unopened, to the Ombudsman.

Comment. A provision of this nature has commonly been included in ombudsman statutes. It provides a measure of psychological assurance that everyone may have ready access to the Ombudsman without fear of reprisal.

Section 12. Consultation with agency. Before announcing a conclusion or recommendation that criticizes an administrative agency or any person, the Ombudsman shall consult with that agency or person.

Comment. No provision need be made for giving specific notice that the Ombudsman has decided to investigate, if he does so decide. He will inescapably be in communication with the administrative agency when he needs its information or opinions. Formalities should be avoided lest a small organization be overborne by essentially ceremonial requirements.

At the point of announcing his conclusions, however, the Ombudsman should guard against his own mistakes by consulting those whom his findings may hurt. The requirement that he consult will not substantially impede his work, but will be a protection for all concerned against unwitting errors in fact, judgment, or expression.

Section 13. Recommendations. (a) If, having considered a complaint and whatever materials he deems pertinent, the Ombudsman is of the opinion that an administrative agency should 1) consider the matter further, 2) modify or cancel an administrative act, 3) alter a regulation or ruling, 4) explain more fully the administrative act in question, or 5) take any other step, he shall state his recommendations to the administrative agency. If the Ombudsman so requests, the agency shall, within the time specified, inform him about the action taken on his recommendations or the reasons for not complying with them;

Comment. Though the Ombudsman will rarely have reason to make a recommendation if he does not find an error in what the administrative 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.

Section 13

(a) 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 may still possess to right what the Ombudsman points out as a past mistake. Bearing in mind that consultation under Section 12 will precede recommendation under Section 13, one may safely predict that rashly critical opinions will not be expressed.
(b) If the Ombudsman believes that an administrative action has been dictated by laws whose results are unfair or otherwise objectionable, he shall bring to the……[name of legislative body]’s notice his views concerning desirable statutory change.

Comment. This subsection makes clear that 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 the 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.

Section 14. Publication of Recommendations. The Ombudsman may publish his conclusions, recommendations, and suggestions by transmitting them to the …..[title of chief executive], the……..[name of legislative body] or any of its committees, the press, and others who may be concerned. When publishing an opinion adverse to an administrative agency or official he shall (unless excused by the agency or official affected) include the substance of any statement the administrative agency or official may have made to him by way of explaining past difficulties or present rejection of the Ombudsman’s proposals.

Comment. Bringing his views into the open is the Ombudsman’s sole means of gaining the public’s support. This section permits publication even when an agency has accepted recommendation. Publicity may be needed to call other administrators’ attention to current developments and also to remind the public at large that the Ombudsman is functioning for the citizenry’s benefit. Publicity, however, occurs at the end and not at the beginning of discussions with the agency involved. Persuasion is the chief instrument in gaining administrative agencies’ favorable response to suggestions. Only when persuasion fails will the Ombudsman begin to think about mobilizing the force of public opinion. To guard against one-sidedness, the Ombudsman is required to disclose the criticized agency’s or official’s view of the matter along with his own, when the two views differ.

Section 15. Reports. In addition to whatever reports he may make from time to time, the Ombudsman shall on or about February 15 of each year report to the……[name of legislative body] and to the ……..[title of the chief executive] concerning the exercise of his functions during the preceding calendar year. In discussing matters with which he has dealt, the Ombudsman need not identify those immediately concerned if to do so would cause needless hardship. So far the annual report may criticize named agencies or officials, it must also include the substance of their replies to the criticism.

Section 16. Disciplinary action against public personnel. If the Ombudsman has reason to believe that any public official, employee, or other person has acted in a manner warranting criminal or disciplinary proceedings, he shall refer the matter to the appropriate authorities.

Section 17. Ombudsman’s immunities. (a) No proceeding, opinion, or expression of the Ombudsman shall be reviewable in any court;

Comment. Subsection (a) precludes judicial review of the Ombudsman’s work. This preclusion simply recognizes that the Ombudsman issues no orders and takes no steps that bar anyone from pursuing preexisting remedies.

(b) No civil action shall lie against the Ombudsman or any member of his staff for anything done or said or omitted, in discharging the responsibilities contemplated by this Act;

Comment. Subsection (b) extends to the Ombudsman’s office the immunity from harassment by lawsuit that is shared by judges and many other officials. It does not preclude criminal prosecution were serious misconduct ever to be brought to light; moreover, Section 6 provides for removal from office were the Ombudsman to be found miscreant.

(c) Neither the Ombudsman nor any member of his staff shall be required to testify or produce evidence in any judicial or administrative proceeding concerning matters within his official cognizance, except in a proceeding brought to enforce this Act.

Comment. Subsection (c) saves the Ombudsman’s office from the awkwardness of interrupting its on-going work in order to testify about matters concerning which it may have received information (also given in confidence). The subsection does not, however, preclude the Ombudsman’s testifying in proceedings needed to enforce the Act, such as an action to compel compliance with a subpoena or a prosecution against a violator under Section 19, below. The subsection does prevent his being used as an adjunct to private litigation.

Section 18. Rights and duties of witnesses.

(a) A person required by the Ombudsman to provide information shall be paid the same fees and travel allowances as are extended to witnesses whose attendance has been required in the courts of this state;
(b) A person who, with or without service of compulsory process, provides oral or documentary information requested by the Ombudsman shall be accorded the same privileges and immunities as are extended to witnesses in the courts of this state, and shall also be entitled to be accompanied and advised by counsel while being questioned.
(c) If a person refuses to respond to the Ombudsman’s subpoena, refuses to be examined, or engages in obstructive misconduct, the Ombudsman shall certify the facts to the …..[insert name of suitable court]. The court shall thereupon issue an order directing the person to appear before the court to show cause why he should not be punished as for contempt. The order and a copy of the Ombudsman’s certified statement shall be served on the person,

Thereafter the court shall have jurisdiction of the matter. The same proceedings shall be had, the same penalties may be imposed, and the person charged may purge himself of the contempt in the trial of a civil action before the court.

Comment. Subsection (c) describes the manner enforcing subpoenas through independent judicial examination of the matter. The procedure here proposed is derived from California Government Code 11525. In all probability, the need to enforce subpoenas will not in fact arise. Information already in the possession of an administrative agency will be freely accessible to the Ombudsman. Information in a complainant’s possession will of course be gladly supplied. Occasions on which data must be dragged from reluctant third parties are not likely to occur.

Section 19. Obstruction. A person who willfully obstructs or hinders the proper exercise of the Ombudsman’s functions, or who willfully misleads the Ombudsman in his inquires, shall be fined not more than $1000.

Comment. If the enactment be by a municipality, counsel should determine whether the local legislature has power under state law to create an offence punishable by fine. 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. There are hereby authorized to be appropriated such sums as may necessary to carry out the provisions of this Act.

Comment. The appropriations section must be shaped in accord with local practice and fiscal regulations. In some jurisdictions it need not be included in an organic statute like the one now proposed. In other jurisdictions a specific amount may have to be shown as the appropriation.

If inclusion of an appropriation section is not absolutely necessary, its omission is recommended.

Section 22. Effective date. This Act shall take effect immediately.

For additional information on the Section, please contact Kristine Weiand at:
Phone: (202) 662-1528
Fax: (202) 662-1529
E-Mail: WeiandK@staff.abanet.org