1. Definition

The Ombudsman is an independent governmental official who receives complaints against government agencies and officials from aggrieved persons, who investigates, and who, if the complaints are justified, makes recommendations to remedy the complaints.

2. Basic Concept

The Ombudsman system is one of the institutions essential to a society under the Rule of Law, a society in which fundamental rights and human dignities are respected. Human rights are not protected simply by constitutions or legislation, by guarantees or speeches, by proclamations or declarations, but primarily by the availability of remedies. The Ombudsman system is one of the remedies which seeks to preserve human rights.

3. Reasons for Ombudsman

a). The post-World War II growth of the welfare state. Government grew in size and extensive powers were given to agencies. Protection is needed against executive and administrative mistake and abuse of power.

b). The activities of public administration have become so comprehensive and the power of the bureaucracy so great that the legal status of the individual needs additional protection.

c). Existing mechanism - courts, legislatures, the executive, administrative courts, and administrative agencies - are not sufficient to cope with the grievances of the aggrieved and there is a need for a supplementary institution.

d). The presence of the Ombudsman has psychological value. His office gives the citizen confidence that there exists a watchdog for the people who will hold government accountable.

e).The legislature traditionally concerned with the observance of laws and rulings by public officials has at the same time extensively delegated powers to the administrative authorities. The Ombudsman can serve to aid the legislature in its function of supervising the executive and administrator.

f). The Ombudsman gives the citizen an expert and impartial agent without personal cost to the complainant, without time delay, without the tension of adversary litigation, and without requirement of counsel or the intervention of those highly placed.

4. Types of Action or inaction which Gives Rise to Complaints

1. Injustice 2. Failure to carry out legislative intent 3. Unreasonable delay 4. Administrative error 5. Abuse of discretion 6. Lack of courtesy 7. Simple clerical error 8. Oppression 9. Oversight 10. Negligence 11. Inadequate investigation 12. Unfair policy 13. Partiality 14. Failure to communicate 15. rudeness 16. Maladministration 17. Unfairness 18. Unreasonableness 19. Arbitrariness 20. Arrogance 21. Inefficiency 22. Violation of law or regulations 23. Abuse of authority 24. Discrimination 25. Disability to act 26. Errors, mistakes, carelessness 27. Disagreement with discretionary decisions 28. Inconsistent with general course of an agency's function 29. Mistakes in law or arbitrary in ascertainments of facts 30. Based on irrelevant consideration 31. Unclear or inadequately explained when reason should have been revealed 32. Inefficiently performed 33. All other acts of injustice that frequently the governors inflict upon the governed, intentionally or unintentionally

b). The Ombudsman may also recommend clarification, amendment, or initiation of legislation and administrative rules and regulations.

5. American Bar Association Resolution

The following Resolution dealing with the establishment of an Ombudsman was adopted by the American Bar Association at the Midyear Meeting of the House of Delegates in 1969.

BE IT RESOLVED, That the American Bar Association recommends:

1. That state and local governments of the United States should give consideration to the establishment of an ombudsman authorized to inquire into administrative action and to make public criticism.

2. That each statute or ordinance establishing an ombudsman should contain the following twelve essentials: (1) authority of the ombudsman to criticize all agencies, officials, and public employees except courts and their personnel, legislative bodies and their personnel, and the chief executive and his personal staff; (2) independence of the ombudsman from control by any other officer, except for his responsibility to the legislative body; (3) appointment by the legislative body or appointment by the executive with confirmation by the designated proportion of the legislative body, preferably more than a majority, such as two-thirds; (4) independence of the ombudsman through a long term, not less than five years, with freedom from removal except for cause, determined by more than a majority of the legislative body, such as two-thirds; (5) a high salary equivalent to that of a designated top officer; (6) freedom of the ombudsman to employ his own assistants and to delegate to them, without restrictions of civil service and classification acts; (7) freedom of the ombudsman to investigate any act or failure to act by any agency, official, or public employee; (8) access of the ombudsman to all public records he finds relevant to an investigation; (9) authority to inquire into fairness, correctness of findings, motivation, adequacy of reasons, efficiency, and procedural propriety of any action or inaction by any agency, official, or public employee; (10) discretionary power to determine what complaints to investigate and to determine what criticisms to make or to publicize; (11) opportunity for any agency, official, or public employee criticized by the ombudsman to have advance notice of the criticism and to publish with the criticism and answering statement; (12) immunity of the ombudsman and his staff from civil liability on account of official action.
3. That for the purpose of determining the workability of the ombudsman idea within the Federal government, the Federal government should experiment with the establishment of an ombudsman or ombudsmen for a limited geographical area or areas for a specific agency or agencies or for a limited phase or limited phases of Federal activity.
4. That establishment of a Federal government-wide ombudsman program should await findings based upon the experimentation recommended.

BE IT FURTHER RESOLVED, That the Section Administrative Law is authorized to present the views of the Association and to encourage the establishment of ombudsmen in accordance with the provisions of this Resolution, by all necessary and appropriate means.

ABA Section of Administrative Law & Regulatory Practice
740 15th Street NW
Washington, DC 20005-1022 E-Mail: adminlaw@abanet.org