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ADMINISTRATIVE LAW & REGULATORY PRACTICE |
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ADMINISTRATIVE LAW & REGULATORY PRACTICE |
Model Ombudsman Act for State Governments
MODEL OMBUDSMAN ACT FOR STATE
GOVERNMENTS
FEBRUARY 1997
Drafted by
Model Ombudsman Act Committee of the
United States Ombudsman AssociationAn Act to establish the office of Ombudsman in__________________________.
COMMENT. Enactment clause would be in an appropriate form for the state.
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 [(Alternate) 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 [(Alternate) and local] laws.
COMMENT. This section provides a concise description of the characteristics of the office and its goals.
If jurisdiction over political subdivisions of the state is included, the phrase "and local" should be included. It must be determined whether the inclusion of the phrase "and local" will be interpreted as pre-empting state jurisdiction over both state and local agencies and preventing local governmental units from establishing their own Ombudsmen.
Section 2. Short Title
This Act may be cited as "The (name of state) Ombudsman Act."
COMMENT. The title "Ombudsman" is distinctive from the more usual official titles such as "director" and "commissioner" and has gained recognition in the United States and other countries. The existing state statutes do not all use the title: Hawaii - "Ombudsman"; Nebraska - "Public Counsel"; Iowa - "Citizens’ Aide"; Alaska - "Ombudsman"; Arizona - "Ombudsman-Citizens’ Aide." But it should be noted the term "Ombudsman" is used in these states by the public, the media, and even by the incumbents, who found other titles could be confused with other offices and concepts.
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.
If a term other than "Ombudsman" is selected, appropriate changes must be made throughout this Act.
Section 3. Definitions
As used in this Act,
(a) "Agency" means any department, organization, board, commission, council, bureau, administrative tribunal, facility, institution or other governmental entity of (name of state), [(Alternate) any person who is providing services to individuals under contract with (name of state) and as a term of that contract is subject to the Ombudsman’s jurisdiction], and any official, officer, administrative hearing examiner, employee or member of (name of state), whether elected or appointed, acting or purporting to act by reason of connection with (name of state), except:
(1) any judge;
(2) the legislature, its members, its committees and its employees;
(3) the governor and the governor’s personal staff;
[(4) (Alternate A) any political subdivision of the state;]
[(4) (Alternate B) mayors, council members, judges, and any other elected officials of any political subdivision and their personal staff;]
(5) any multi-state governmental entity.
(b) "Administrative act" means any action, decision, adjudication, 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.
(d) "Record" means all records, documents, books, papers, files, photographs, microfilms, sound recordings, video recordings, magnetic storage media, computer data and all other materials, regardless of physical form or characteristics, created, generated, recorded, received, possessed or controlled by or on behalf of any agency.
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. An alternative clause has been added to provide that the Ombudsman’s jurisdiction would include businesses, corporations, persons, etc., under contract to provide services to individuals on behalf of the state. With the increasing popularity of "privatizing" government services, policy-makers may feel the need to bring these "private" bureaucracies under the Ombudsman’s jurisdiction, in order to insure that the public receives the same level of protection afforded when the services are provided directly by state agencies. If this alternative is adopted, then it would also be necessary to add to the state’s statutes relating to procurement a provision to require all agencies entering into a contract for the "privatization" of governmental services to include in that contract a clause obligating the private service provider to submit to the Ombudsman’s jurisdiction. By making cooperation with the Ombudsman a condition of the contract, the private contractors will understand from the outset their responsibilities to the Ombudsman and will accept that arrangement as a part of the agreement with the state.
(a)(1) The exclusion of judges is based upon the existence of the long established system of appellate review of judicial decisions and upon the existence of other mechanisms for the sanctioning and/or the removal of judges who act unethically or who are incapacitated. The exclusion is narrow and contemplates that the Ombudsman would have jurisdiction to investigate administrative or ministerial acts by employees of the judicial branch, when those acts are peripheral to the adjudication itself. In many instances, administrative errors affecting a particular adjudication would have to be challenged and resolved through the established judicial process, but even in those cases, the Ombudsman could make recommendations for improving administrative procedures that would have a prospective effect. The Ombudsman would not, of course, have the jurisdiction to question, criticize or review the substantive content of any judicial order, decision or opinion. The exclusion of judges would pertain only to judicial officers of the judicial branch of government and would not exclude administrative tribunals or administrative law "judges" from the Ombudsman’s jurisdiction.
(a)(2) The Legislature--an independent policy making body, whose actions are conspicuous and subject to public scrutiny, and whose tenure is subject to periodic popular review--is excluded. Committees and staff members who assist in policy formation are, likewise, excluded. Although there may be legislative employees, agencies, bureaus or divisions that provide direct services to the public, those employees and entities are also excluded from the Ombudsman’s jurisdiction, because of concerns that the Ombudsman’s close relationship with the legislative branch would compromise the independence of the office in dealing with cases involving those employees, agencies, etc. If it is determined that it is desirable to include these legislative service agencies within the Ombudsman’s jurisdiction, then as an alternative the exclusion might read, "(2) the members and committees of the legislature and their immediate staff."
(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 indistinguishable 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: "[(4) mayors, council members, judges, and other elected officials of political subdivisions and their personal staff;]." A saving clause for existing municipal Ombudsman offices may be added if necessary and desirable.
(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), are based on practical and constitutional limitations on sovereign power of the state over such agencies.
(b) "Administrative Act" is broadly defined and includes decisions by administrative boards or tribunals or administrative law "judges" and rule-making activities.
(c) "Person" is defined broadly.
(d) "Record" is broadly defined to make it clear that the Ombudsman is intended to have access to all recorded information possessed or controlled by agencies, regardless of the form or manner of storage of that information.
Section 4. Creation of Office
The office of Ombudsman is established.
Section 5. Nomination and Appointment
The (insert name of legislative body) shall elect the Ombudsman by a two-thirds vote of the members of each house present and voting.
COMMENT. The Ombudsman is an appointed officer of the legislative branch of government. This arrangement helps to guarantee the independence of the Ombudsman, who might be reluctant to criticize the actions of agencies that are responsible to the executive, if he or she were an executive appointee. As part of the legislative branch of government, the Ombudsman is not only providing a direct service to citizens, but is also performing a role in legislative oversight of the agencies under the Ombudsman’s jurisdiction. Since the Ombudsman may only make recommendations, and may not compel the executive and judicial agencies to take substantive actions, the Ombudsman’s role is consistent with the concept of separation of powers.
Section 6. Qualifications
(a) The Ombudsman shall be a person of recognized judgment, objectivity and integrity who is well-equipped to analyze problems of law, administration, and public policy.
(b) No person while serving as Ombudsman:
(1) shall be actively involved in political party activities or publicly endorse, solicit funds for or make contributions to political parties or candidates for elective office;
(2) shall be a candidate for or hold any other elective or appointive public office;
(3) shall engage in any other occupation, business, or profession likely to detract from the full-time performance of his or her duties as Ombudsman or to result in a conflict of interest or an appearance of impropriety or partiality.
COMMENT. The Ombudsman should be a full-time impartial expert in whom the public can have confidence.
(a) This subsection gives the core characteristics and qualifications for an Ombudsman and hence provides more guidance than a mere listing of restrictions on the official.
(b) Paragraph (b)(1) seeks to preserve the Ombudsman’s impartiality and the appearance of impartiality in the political arena. The Ombudsman retains the right to participate in the political process as a voter and to express his or her opinion privately.
Paragraph (b)(2) inhibits an Ombudsman from using the office as a political stepping-stone. To further protect the office from politicization, some states (Arizona, Hawaii, and Nebraska) provide that the Ombudsman shall not have served as a member of the Legislature for one or two years prior to his or her appointment. However, this could prevent the appointment of a highly qualified legislator.
Paragraph (b)(3) seeks to assure that the Ombudsman’s work is performed on a full-time basis, and that the Ombudsman remains impartial.
Section 7. Term of Office
The Ombudsman shall serve for a term of years and until his or her successor is appointed and qualified. He or she may be reappointed for additional terms.
COMMENT. A long term is desirable: to permit the Ombudsman sufficient time to become proficient at his or her duties; to provide a measure of independence from politics; and to provide prestige and security to attract qualified persons 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 years. The same points that argue for a long term of office for the Ombudsman also support the concept that the incumbent should be eligible for reappointment at the end of his or her term.
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 from office, but only for mental or physical incapacity to perform the duties of the office, 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) The Ombudsman should be secure in the position, so removal is made difficult and must be for cause. This protects the Ombudsman from groundless attacks or political threats. As an alternative, this subsection might provide that the Ombudsman 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 [(Alternate A) a state judge at the general trial court or higher level.] [(Alternate B) a state department head.] [(Alternate C) a legislative agency head.] The salary of the Ombudsman shall not be diminished during the Ombudsman's term of office, unless by general law applying to all salaried officers of the state.
COMMENT. The Ombudsman is a high-level official who should receive a salary that reflects the importance, responsibility and prestige of the office. Also, a high salary is warranted if the Ombudsman is prohibited by law from engaging in any other occupation, business, or profession.
Three alternative salary proposals are offered for consideration. The first sets the salary at least equal to that of a general trial court judge. The comparison between the two offices is apt in terms of recognizing the Ombudsman’s stature as well as reinforcing the concept of the Ombudsman’s independence and neutrality. The second ties the Ombudsman’s salary to that of the state department heads. This also provides appropriate stature to the office and emphasizes the point that the Ombudsman deals with department heads as an equal rather than as a lower level official. The third equates the Ombudsman with other legislative agency heads. This approach may be a more familiar frame of reference to legislators and it would help assure consistency within any existing legislative branch salary system. Practically speaking, any of the three alternatives should result in fairly similar salary amounts.
Section 10. Organization of Office
(a) The Ombudsman shall select, appoint and fix the compensation of a person as Deputy Ombudsman and may select, appoint and fix the compensation of such other officers and employees as the Ombudsman may deem necessary to discharge the Ombudsman’s responsibilities under this Act. Compensation shall be fixed within the amount available by appropriation. All officers and employees shall serve at the Ombudsman’s pleasure.
(b) The Ombudsman may delegate to staff members any authority, power or duty except this power of delegation and the Ombudsman’s duty to make any report under this Act. However, the Ombudsman may authorize the Deputy Ombudsman to act in the Ombudsman’s stead in the event of illness, absence, leave or disability, or when, in the Ombudsman’s sole discretion, an appearance of impropriety or partiality or a conflict of interest prevents the Ombudsman from discharging his or her duty in a particular matter.
(c) The Ombudsman and his or her staff shall be entitled to participate in any employee benefit or retirement plan available to state employees.
COMMENT. (a) The sensitive nature of the work and the high degree of delegation to and confidence in staff that will be required dictate that the Ombudsman 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., section 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 the office and for whatever reports leave the office [section 16] -- unless the Deputy Ombudsman has assumed the Ombudsman’s duties under this sub-section or when the office is vacant [section 8(b)]. The Ombudsman has complete discretion with respect to recusal for "cause" in order to avoid procedural smoke screens and because the Ombudsman can be expected to diligently maintain his or her limited authority through appropriate recusal. The Ombudsman has discretion to require, by regulation [section 11(b)] or otherwise, that a delegation be in writing or that staff members take an oath of office.
Section 11. Powers
The Ombudsman’s powers and duties include but are not limited to the following:
(a) to investigate, on complaint or on the Ombudsman’s own initiative, any administrative act of an agency, without regard to the finality of the administrative act;
(b) to undertake, participate in or cooperate with persons and agencies in such conferences, inquiries, meetings, or studies which might improve the functioning of agencies or lessen the risks that objectionable administrative acts will occur;
(c) to make such inquiries and obtain such assistance and information from any agency or person as the Ombudsman shall require for the discharge of the Ombudsman’s duties. Agencies shall not restrict the Ombudsman’s access to agency personnel;
(d) notwithstanding any other provision of state law, to have access to and to examine and copy, without payment of a fee, any agency records, including records which are confidential by state law. The Ombudsman shall not disclose confidential records and shall be subject to the same penalties as the legal custodian of the records for any unlawful or unauthorized disclosure;
(e) to enter and inspect without prior notice the premises of any agency;
(f) to subpoena any person to appear, to give sworn testimony or to produce documentary or other evidence that is reasonably relevant to the matters under investigation;
(g) to maintain confidential any matter related to complaints and investigations, including the identities of the complainants and witnesses, except as the Ombudsman deems necessary to discharge the Ombudsman’s duties;
(h) to bring suit in (name of court) to enforce the provisions of this Act;
(i) to adopt, promulgate, amend and rescind rules and regulations required for the discharge of the Ombudsman’s duties, including procedures for receiving and processing complaints, conducting investigations, and reporting findings, conclusions and recommendations. However, the Ombudsman may not levy any fees for the submission or investigation of complaints;
(j) to prepare and administer a budget for the office of the Ombudsman;
COMMENT. The general powers and duties of the Ombudsman are enumerated for clarity; however, this section is not an exhaustive listing of all the powers and duties delegated to the Ombudsman. Additional provisions related to staffing, delegation of powers and duties, recommendations, and reports are contained in sections 10, 15, and 16.
(a) The Ombudsman’s investigatory power is limited to administrative acts of agencies [section 3(b)]. The Ombudsman may receive and consider complaints from any source. The Ombudsman can initiate an investigation when others are unwilling to come forward with a complaint or when the Ombudsman discovers a matter warranting investigation.
(b) Although most of the Ombudsman’s time will be occupied with individual complaints, the Ombudsman can conduct studies of a general nature to improve agency efficiency or service to the public, either independently or jointly with other governmental bodies or non-governmental research enterprises.
(c) The Ombudsman has broad access to any type of information from an agency or person, and an agency may not restrict agency personnel from assisting or providing information to the Ombudsman. There is no requirement to conduct formal evidentiary hearings of an adversary nature, although the Ombudsman can take statements from persons under oath. If testimony is taken, it should be perceived purely as an investigatory proceeding, and the procedure need not comport with what is normally required in a formal adjudication hearing.
(d) The Ombudsman can examine and copy or obtain a copy of any agency record, including records which are confidential under state law, without the payment of any fee. However, the Ombudsman and the Ombudsman’s staff are obligated to maintain the confidentiality of any confidential records provided by an agency to the same extent as the legal custodian of the records.
(e) The Ombudsman has the power to inspect any agency without notice, as advance notice might negate the value of such a visit. Information gathered on site visits may provide subjects for investigation on the Ombudsman’s own motion.
(f) The Ombudsman can compel any person to provide testimonial, documentary, or other evidence through issuance of a subpoena. Implicitly, the Ombudsman and his or her staff are empowered to administer oaths to such witnesses. Protections and privileges for witnesses, regardless of whether or not they have been subpoenaed, are provided in section 18. If a person refuses to comply with the subpoena, the Ombudsman can seek enforcement under section 11(h).
(g) To facilitate the gathering of information, the Ombudsman has discretion to keep confidential any complaint or investigative information. The Ombudsman may disclose such information as the Ombudsman deems necessary or appropriate in carrying out the Ombudsman’s duties.
(h) The Ombudsman may bring suit regarding the exercise of his or her powers, including actions: for a declaratory judgment to obtain jurisdiction [under sections 3(a) and 11(a)]; to enter and inspect agencies [section 11(e)]; to show cause for not appearing after being subpoenaed [section 11(f)]; and to enforce confidentiality provisions [sections 13(d) and 13(e)].
(i) The Ombudsman is given broad regulatory discretion to determine the procedures for carrying out the office’s functions. The Ombudsman may through rules or regulations specify the means by which complaints may be submitted (which may include fax or electronic mail) and require for good reason that certain types of complaints be in writing. To insure accessibility (and avoid discrimination against the poor), a fee may not be imposed for the Ombudsman’s services.
(j) A provision for budgetary powers may be necessary in some states and useful in others, to insure that the Ombudsman’s budget is independent of outside (agency) administration.
Section 12. Investigation of Complaints
(a) The Ombudsman shall conduct a suitable investigation of a complaint that is an appropriate subject for investigation. An appropriate subject for investigation by the Ombudsman includes any administrative act which the Ombudsman believes might be:
(1) Contrary to law or regulation;
(2) Based on mistaken facts or irrelevant considerations;
(3) Unsupported by an adequate statement of reasons;
(4) Performed in an inefficient manner;
(5) Unreasonable, unfair, or otherwise objectionable, even though in accordance with law; or
(6) Otherwise erroneous.
(b) The Ombudsman in the Ombudsman's discretion may decide not to investigate because:
(1) The complainant could reasonably be expected to use another 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) The complainant is not personally aggrieved by the subject matter of the complaint;
(5) Resources are insufficient for adequate investigation; or
(6) Other complaints are more worthy of attention.
(c) The Ombudsman's declining to investigate a complaint shall not bar the Ombudsman from proceeding on his or her own initiative to investigate an administrative act whether or not included in the complaint.
COMMENT. (a) The Ombudsman has a duty to investigate the complaints described in subsection (a), although he or she may decline to investigate for the reasons given in subsection (b). The enumerated complaints indicate the kinds of administrative acts that generate complaints to the Ombudsman’s office. As shown by paragraph (a)(6), which is a catchall, and subsection (c), the statute is intended as a guide to and not a limitation on the complaints which the Ombudsman can investigate.
(b) The Ombudsman may choose to investigate a complaint even though the statute permits him or her to refuse. For instance, under paragraph (b)(1), if the Ombudsman believes that recourse to an administrative or legal remedy would be futile or overly burdensome to the complainant, the Ombudsman may investigate the complaint. Similarly, the Ombudsman may decide to investigate a complaint of public concern even though the complainant was not personally aggrieved.
(c) Complaints which are inappropriate for investigation may nevertheless reveal administrative acts which the Ombudsman may decide to investigate on his or her own initiative [section 11(a)].
Section 13. Rights of Complainant--Communication With Complainant
(a) After the Ombudsman has decided whether or not to investigate a complaint, the Ombudsman shall suitably inform the complainant.
(b) The Ombudsman shall, if requested by the complainant, suitably report the status of his or her investigation to the complainant.
(c) After investigation of a complaint, the Ombudsman shall suitably inform the complainant of his or her 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. Telephone and personal contacts between the Ombudsman and a person in custody shall not be prohibited or monitored.
COMMENT. Subsections (a), (b) and (c) 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.
Section 14. Rights of Agency
Before formally issuing a conclusion or recommendation that is significantly critical or adverse to an agency, the Ombudsman shall have consulted with that agency and permitted the agency reasonable opportunity to reply. If the Ombudsman makes a conclusion or recommendation available to the agency to facilitate a reply, the conclusion or recommendation is confidential and may not be disclosed to the public by the agency unless the Ombudsman releases it.
COMMENT. This section protects agencies, their officers and employees by requiring consultation and giving them reasonable time to reply to significant criticism before the Ombudsman issues critical findings. The Ombudsman has the discretion to make all or part of his or her findings available to facilitate a reply. Because the Ombudsman may modify findings, which may include removal of confidential information and incorporation of the agency’s response [section 15(b)], after reviewing the agency’s reply, disclosure of findings not released by the Ombudsman is a violation of law, which may be dealt with under existing records confidentiality provisions.
Notice of the Ombudsman’s decision to investigate is not required because such formalities: are inconsistent with the role of the Ombudsman as an alternative to procedure-bound remedies and the limited resources of the office; are largely ceremonial in that the Ombudsman will inevitably contact the agency during an investigation; and are not required by due process given the absence of Ombudsman power to enforce recommendations and the fact that an opportunity to be heard is required before publication.
If an advance notice provision is nonetheless desired, it should provide for: informal or preliminary inquiries without notice, since experience shows that the vast majority of complaints are handled expeditiously and informally; withholding notice when notice would hinder investigation; and flexibility of form to avoid legalistic procedural wrangling, e.g. "If after making preliminary inquiries the Ombudsman decides to investigate, the Ombudsman shall suitably inform the agency involved unless the Ombudsman reasonably believes that advance notice will unduly hinder the investigation or make it ineffectual. The Ombudsman may inform the agency verbally or in writing."
Section 15. Procedure after Investigation
(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,
the Ombudsman shall state any conclusions, recommendations and reasons therefor to the agency. If the Ombudsman so requests, the agency shall, within the time specified, inform the Ombudsman about the action taken on recommendations or the reasons for not complying with them.
(b) After a reasonable period of time has elapsed, the Ombudsman may issue his or her conclusions or recommendations to the legislature, the governor, a grand jury, the public, or any other appropriate authority. The Ombudsman shall include any brief statement the agency may provide if an opportunity to reply is required by this Act.
(c) If the Ombudsman believes that an action has been dictated by laws whose results are unfair or otherwise objectionable, and could be revised by legislative action, the Ombudsman shall notify the (insert name of legislative body) and the agency of desirable statutory change.
(d) If the Ombudsman believes that any agency official or employee has acted in a manner warranting criminal or disciplinary proceedings, the Ombudsman shall refer the matter to the appropriate authorities without notice to that person.
COMMENT. (a) Though the Ombudsman will rarely have reason to make a recommendation if there is no error in what the agency has done or neglected to do, the Ombudsman should remain free to suggest improvements in method or policy even when the existing practice may be legally permissible. Thus the Ombudsman may facilitate one agency’s learning about and taking advantage of the experience of another. This subsection contemplates no entry of judgment, as it were, but simply the expression of opinion by the Ombudsman. The Ombudsman is not a superior official, in a position of command, and cannot compel a change in an administrative act. The Ombudsman’s recommendation may, however, induce an agency to exercise whatever power it may possess to right what the Ombudsman points out as a past mistake.
(b) If the Ombudsman is required to provide an opportunity to reply under section 14 and a reply is forthcoming, the Ombudsman must include it when issuing findings. Rather than permitting the Ombudsman to summarize replies, replies are limited to a "brief" statement which shall be printed unedited; regulations as to what is "brief" might be promulgated under section 11(i).
(c) There may be instances where an agency acted in accordance with existing law, but the law itself produces unjust results. The Ombudsman has the duty to bring these situations to the attention of the legislature and appropriate agency officials; if appropriate, the Ombudsman may comment on or recommend changes in legislation.
(d) The Ombudsman’s duty to report wrongdoing pertains to miscreant officials. This subsection makes it clear that the Ombudsman may report allegations of wrongdoing without having to first notify the person involved (who may otherwise flee the state or destroy pertinent evidence if tipped off prematurely). This avoids any ambiguity which may arise if this subsection is read in conjunction with section 14.
If the person has testified before the Ombudsman, such testimony would bear the same privileges as testimony in court [section 18].
Section 16. Reports
The Ombudsman may from time to time and shall annually report on his or her activities to the Governor, to the Legislature, or any of its committees, to the public and, in the Ombudsman’s discretion, to agencies.
COMMENT. The Ombudsman’s sole means of correcting flawed practices when agencies refuse to do so is to publish criticism and recommendations.
The annual report, whose release date would be set by the Ombudsman [section 11(i)], is mandatory. Special [section 15(b)] or general interim reports are discretionary with the Ombudsman.
Section 17. Ombudsman’s Immunities
(a) The substantive content of any finding, conclusion, recommendation, or report of the Ombudsman or member of the Ombudsman's staff shall not be reviewable in any court.
(b) The Ombudsman and the Ombudsman's staff have the same immunities from civil and criminal liabilities as a judge of this state.
(c) The Ombudsman and the Ombudsman's 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 & b) As a public watchdog, the Ombudsman should be able to state his or her position freely and candidly without fear of pressure or reprisal. The judicial immunities afforded the Ombudsman are intended to protect against harassment when the Ombudsman deals with controversial issues or makes an unpopular decision. While the Ombudsman’s findings are presented only after due consideration, no claim of infallibility is made and the Ombudsman’s findings, conclusions and recommendations are always subject to criticism by government officials as well as members of the public. Since the Ombudsman has no enforcement power and any findings and recommendations are only advisory in nature, the courts should have no authority to order that an expression of opinion be changed.
(c) Certain dealings that the Ombudsman has with complainants and witnesses may be confidential in nature. This subsection is meant to protect these confidential relationships so as to encourage complainants to avail themselves of the Ombudsman’s services and witnesses to cooperate with the Ombudsman, where they may be otherwise reluctant to do so.
Section 18. Witnesses’ Privileges
Any person who provides information under this Act may be accompanied and advised by counsel of his or her choice and shall be paid the same fees and travel allowances and accorded the same privileges and immunities as witnesses whose attendance has been required in the (name of court). However, a representative of an agency providing information under this Act during business hours shall not be entitled to receive such fees and allowances.
COMMENT. Although investigations conducted by the Ombudsman are not contested cases or adjudications of rights or interests, and although nearly all testimony will be private and confidential, witnesses who testify (whether or not by subpoena) are given judicial privileges and immunities. Witness fees and travel allowances are also required for persons who provide information to the Ombudsman under the Act. A provision that a representative of an agency during business hours shall not be entitled to such fees and allowances is 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 the Ombudsman’s inquiries, shall be guilty of a (specify the level of offense).
COMMENT. It must be determined in each state whether necessity exists for indicating the court in which proceedings are to be brought and upon whose initiative. Since fines for offenses vary from state to state and may be subject to periodic changes, it is preferable to specify the offense rather than a set amount of fine for a violation.
Section 20. Reprisals Prohibited
(a) No person who files a complaint or participates in any investigation or proceeding pursuant to this chapter shall be subject to any penalties, sanctions or restrictions in connection with his or her employment or be denied any right, privilege, or benefit because of such action.
(b) A person who alleges a violation of this part may bring a civil action for appropriate injunctive relief, actual damages, and punitive damages. Punitive damages shall not exceed $10,000.
COMMENT. This section provides protection to complainants and witnesses from reprisals at their place of employment or the deprivation of other rights or privileges because of their participation in Ombudsman investigations.
Section 21. Relation to Other Laws
The provisions of this Act are in addition to and do not in any manner limit or affect any other provisions of law 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 of law to the effect that any administrative action shall be final or unappealable.
COMMENT. This section clearly sets forth that the Ombudsman office is a supplemental remedy and is in addition to other remedies or rights of appeal--a principle also covered in section 1 with respect to legislative purpose. This section also establishes the principle that the Ombudsman powers are not inhibited by statutory enactments providing that any administrative action shall be final or unappealable.
Section 22. Appropriation
There is appropriated out of the general revenues of the state the sum of $_______, or so much thereof as may be necessary for fiscal year _____, to the office of the Ombudsman to carry out the purposes of this Act.
COMMENT. Before an Ombudsman statute can be implemented, funding needs to be made available to pay for the expense of the office. This section provides the mechanism to do this. This section should be included where required by the fiscal regulations or practice of the state. If inclusion of such section is not necessary, it can be omitted.
Section 23. Effective Date
This Act shall take effect upon its approval.
COMMENT. This is standard enactment language. The Act actually becomes effective only after appropriation has been made and an Ombudsman has taken office.
Section 24. Severability
The provisions of this Act are declared severable, and if any provision thereof is held to be invalid for any reason, the validity of the remainder of the Act shall not be affected.
COMMENT. The inclusion of this section is optional. It is not in any of the existing state Ombudsman statutes. The need for a severability clause is unclear, but it may be helpful to assuage any legal concerns that may be raised when the bill is being voted on in the legislature.
REFERENCES
Our proposed model ombudsman act is based primarily on the American Bar Association Model Ombudsman Statute for State Governments. The annotated ABA model, together with Bernard Frank's extensive commentary, may be found in Bernard Frank, "State Ombudsman Legislation in the United States," University of Miami Law Review 29, no. 3 (Spring 1975), 379-445. This is an extremely comprehensive source of information about the history of the ombudsman institution in the United States as well as on the principles behind ombudsman legislation.
In turn, the ABA model was based on the model prepared by the late Professor Walter Gellhorn. See Walter Gellhorn, "Annotated Model Ombudsman Statute." In Ombudsman for American Government? Edited by Stanley V. Anderson. Englewood Cliffs, NJ: Prentice-Hall, Inc., 1968.
One of the sources that Professor Gellhorn used for his model was the Harvard model prepared by the Harvard Student Legislative Reference Bureau. See "A State Statute to Create the Office of Ombudsman," Harvard Journal on Legislation 2, no. 2 (June 1965), 213-238.
We also consulted the current state ombudsman statutes to compare the differences and similarities among them. Interested readers are directed to those sources for further information about possible statutory variations and alternatives. The Alaska ombudsman is authorized under Title 24, Chapter 55 of the Alaska Statutes. In Arizona, Title 41, Chapter 8, Article 5 of the Arizona Revised Statutes Annotated establishes the office of the ombudsman-citizens aide. Chapter 96, Hawaii Revised Statutes, is the ombudsman statute for Hawaii. In Iowa, the ombudsman is known as the citizens' aide pursuant to Chapter 2C, Iowa Code Annotated. Public Counsel is the title used in Nebraska in accordance with Sections 81-8,240 to 81-8,254, Revised Statutes of Nebraska.