By
LARRY B. HILL
Professor of Political Science
The University of Oklahoma
Norman, Oklahoma 73019
Address delivered at the 1997 Spring Meeting of the
American Bar Association
Section of Administrative Law and Regulatory Practice
Hotel Washington, Washington, D.C.
April 18, 1997
The title I have chosen for my remarks today is “American Ombudsmen and Others”; or, more rhetorically, “American Ombudsmen and ‘Wannabe’ Ombudsmen.”
The first title is, of course, adapted from Walter Gellhorn’s book, Ombudsmen and Others,1 and I am saddened as I think that he, who contributed so much to the Ombudsman movement in this country and around the world and to the lives of many of us in this room, will no longer be with us on these occasions.
According to my calculations, I have been doing research on the Ombudsman for a third of a century—a sobering thought for me. During that time, I have been asked innumerable times by family, friends, colleagues, students, What is an Ombudsman? It has never been an easy question to answer. Defining this foreign term has always been a necessity from the very beginning, and I have spent a lot of time on definitions over the years.
As a social scientist, my initial interest in the office was related to the theoretical problem of transferring institutions from one country to another. Many fascinating problems are involved in that process, such as How can one tell when the essence of an institution has been transferred and not just the form? Also, How much distortion occurs in the process of transference? And many other questions arise. These questions are intimately related, of course, to the issue of institutional definition.
During the 1960s, the institution’s virtues were extolled by a number of scholars, including Henry Abraham; the Danish ombudsman, Stephen Hurwitz; Donald Rowat; Walter Gellhorn; and Stanley Anderson. The result was the development in the United States of what was called “Ombudsmania.” The institution was interesting to many people because of the particular, very specific functional and structural characteristics of a given office, the Justitieombudsman in Sweden, the Ombudsman for Justice.
The interest in the Ombudsman was stimulated by a particular intellectual current: a widely shared concern about the future of democracy and the role of the citizen in what was seen as an increasingly bureaucratic age. Many observers felt that the growth of government and its attendant bureaucracies posed threats for citizens as they tried to preserve their humanity against the expanding bureaucratic Leviathan. Donald Rowat’s book2 was entitled The Ombudsman: Citizen’ Defender, and Gellhorn’s subtitle was Citizens’ Protectors in Nine Countries. As a citizen, my interest in the Ombudsman was piqued by the institution’s relevance to the issue of the emerging new relationship between bureaucracy and democracy.
During the 1960s, a few Ombudsmen based on the model of the Swedish Ombudsman for Justice or on the similar Danish or New Zealand models were created in the United States, some at the local and some at the state level. In addition, a number of other kinds of offices were created that were sort of ombudsmen. Sometimes they were only a little like ombudsmen; in other cases, they were quite a lot like ombudsmen. Students of the office called those that came under the jurisdiction of an executive—a mayor or governor—“executive ombudsmen.”3 These and other offices that deviated significantly from the model of the Swedish Ombudsman (perhaps they were not legally established) were sometimes labeled “quasi-ombudsmen” by scholars.4
But the advocates and the incumbents of these executive or quasi-ombudsmen often used the unqualified term Ombudsman to identify the office. This use was congruent with the generic meaning of the Swedish word: an ombudsman can mean representative, delegate, or proxy. Thus, according to this generic meaning, any individual who acted as a complaints person could be called an ombudsman.
But the English language already had the term complaints person and similar terms, and Ombudsman did not enter the language because it was a more exotic title for an existing institution. Americans and others around the world became interested in the office because of the Ombudsman for Justice, a specific governmental official, that possessed unique institutional features.
The general tendency of those who were interested in the institution was to be tolerant of the deviation of these many offices from the Ombudsman model. Several things explain that toleration. I shall mention five:
• First, many people felt that a particular office, even though it may not be a real Ombudsman, was the closest that it was possible to get to having a such an office at that time, considering the political realities.• Second was the hope that once some of these offices became established as not quite ombudsmen, they might be transformed into a real Ombudsman. This happened with the Iowa State Ombudsman, which began as an executive ombudsman, and later gained legislative status.
• Third, many people felt that even if the particular office was not a real ombudsman, that it was doing good work in terms of helping citizens.
• Fourth, was the feeling Who are we to be judgmental? Why not let people do their own thing and call themselves “Ombudsmen” if they wish. After all, that was the ‘60s: Do your own thing!
• Fifth, people in the Ombudsman community tended to establish personal relationships with these offices and their proponents. When questions were raised about whether an office was a real Ombudsman—let us say that one might be qualified for membership in the U.S. Ombudsman Association—sometimes a tolerant spirit was adopted because people were friendly toward each other and did not want to be seen as being exclusive or unfriendly and disruptive.
But not everyone agreed that the proliferation of offices that were not really ombudsmen but that used the name and had some of the characteristics was necessarily a good thing. As early as 1969, Paul Dolan5 published an article in the National Civic Review, decrying the creation of what he called “pseudo-ombudsmen.” Most observers, though, contented themselves with drawing distinctions among what were seen as various kinds of ombudsmen.
Several people, such as Stanley Anderson and myself, drew distinctions between what we called “classical” ombudsmen and these other kinds of “quasi-” or “executive-ombudsman” offices.6 I now regret having done that because I think the result was to legitimate all of the kinds of offices and to create the impression that the classical ombudsman was simply one, perhaps the preferred one, but no more than one of other kinds of ombudsman offices.
Henceforth, I have resolved to reform. I shall talk of Ombudsmen as meaning “real” Ombudsmen, and I shall talk of others as qualified offices that are not really Ombudsmen. I do so in the spirit of Gellhorn’s Ombudsmen and Others, in which he wrote chapters on the Ombudsmen in the Scandinavian countries and in New Zealand and then included chapters on the “others”—different kinds of complaint-handling institutions in Yugoslavia, Poland, the Soviet Union, and Japan.
Definitions are extremely important; this is not simply a discussion of semantics—about what to call an office. The real issue here is about whether an office that is called an Ombudsman really is one. Institutional definition also is extremely difficult. One must look at both functional concerns and structural concerns in defining political institutions. Thus, we can identify a legislature in functional terms. But important structural differences exist among legislatures that help us to distinguish a parliament from a congress. Or, to use Max Weber’s famous example, many administrative organizations exist, but extremely important differences may be found between real bureaucracies and “patrimonial” administrative organizations, such as the Executive Office of the President or the staff of the Senate Foreign Relations Committee—both of which depend upon the patronage of a father figure. Both function and structure are important to institutional definition
I have defined the mission of Ombudsmen (which I formerly called classical ombudsmen) in functional terms as follows:
The institution’s mission is to generate complaints against government administration, to use its extensive powers of investigation in performing a post-decision administrative audit, to form judgments which criticize or vindicate administrators, and to report publicly its findings and recommendations but not to change administrative decisions.7
After establishing the functions of the office, it is necessary to discuss its structural characteristics, for similar functions could be performed by offices having a variety of structures. Real Ombudsmen possess the following eleven structural, organizational characteristics:
1. Ombudsmen are separate entities that are functionally autonomous.2. Ombudsmen are operationally independent of both the legislature and the executive.
3. Ombudsmen are legally established governmental officials.
4. Ombudsmen are monitoring specialists.
5. Ombudsmen are administrative experts and professionals.
6. Ombudsmen are non-partisan.
7. Ombudsmen are normatively universalistic.
8. Ombudsmen are client-centered, but not anti-administration.
9. Ombudsmen are both popularly accessible and visible.
10. Ombudsmen are high status institutions
11. Ombudsmen have resources extensive enough to perform their mission.8
The Ombudsman Committee of the American Bar Association’s Administrative Law Section defined the Ombudsman in similar terms in 1969: “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.” From a functional perspective, the ABA committee appended a list—led by administrative “injustice”—of some thirty-three kinds of matters that an ombudsman might investigate. And the ABA passed a resolution “to encourage the establishment of ombudsmen in the United States.” The ABA continued its interest in the ombudsman in 1974 and created a detailed model ombudsman statute for state governments; this model statute was updated in 1997 by the U.S. Ombudsman Association to create a more comprehensive statute.
Why should we be concerned about definitions at this time? I shall mention two reasons. First, this is a period in which federal officials are being created of widely varying types. And I think it is important to make these officials as much like real Ombudsmen as possible.
Second, definitions I believe, are especially important now because it is no longer just a question of explaining to people what a real ombudsman is and determining whether to create one. The entire terms of discussion are changing because of a political development—the creation of an organization called The Ombudsman Association, or TOA, which is trying to redefine the Ombudsman.
I shall talk plainly about this development because I believe the time has come when it really is necessary to do so. I have been on good personal and professional terms with many of the people in TOA and hope to continue those relationships. Thus, I hope that my comments will be interpreted not as being aimed at individuals, but as part of an important political discussion. I am not alone in my concern about these developments, upon which I will elaborate in a moment.
Six United States and Canadian ombudsman organizations convened the First North American Conference in St. Louis, May 15–18, 1996.9 Wearing my hat as an participant-observer, I report that two camps clearly seemed to be present. On the one side were those who were real Ombudsmen or those, such as many university ombudsmen, who wished to as much like real Ombudsmen as possible. On the other side were those who were involved with The Ombudsman Association, who seemed to have quite a different idea of what the institution was. In attending the organizations’ separate panel sessions, sharp differences were apparent between the rival camps’ topics, concerns, and approaches.
Except for the scheduling of some concurrent sessions, relatively little formal or informal interchange between the camps was apparent. My interpretation of the informal conversations in which I was a participant-observer indicated a substantial and apparently widespread concern among the real Ombudsmen about the extent to which TOA-style offices were attempting to redefine the Ombudsman institution. During and since that meeting I can recall at least three real Ombudsmen have mentioned to me their conclusion that The Ombudsmen Association was trying to “hijack” the Ombudsman movement. So the development may be a matter of some concern for the Ombudsman’s future.
The TOA-style ombudsman is partly a product of the intellectual current mentioned above in which citizens were seen as being threatened by increasing bureaucratization. But TOA is in large measure a product of a later and quite a distinct intellectual current: the Alternative Dispute Resolution (ADR) movement. Participants in this movement assumed that conflicts would always arise as individuals and groups interacted with each other. The problem was to find ways of resolving the disputes while minimizing all types of costs. In general, adversarial court procedures were viewed as the ideal resolution mechanism that was congruent with the American cultural style—except that they often were costly in several senses. Especially, the courts were seen as expensive, slow, and rigid. Thus, the intent was to find less costly “alternatives.”10
ADR is about process rather than any overarching principles. For example, its enthusiasts often make only passing references to the disparities in power that exist between individuals and the large corporate or governmental entities with which disputes frequently arise. And the basic ADR processes remain the venerable ones of negotiation, mediation, and arbitration. Nonetheless, attempts have been made—with much fanfare—to update and improve the processes. For example, the book Getting to Yes: Negotiating Agreement Without Giving In, which trumpeted its advice on how to arrive at “win-win” resolutions, became a cultural phenomenon—selling more than two-million copies in the first edition.11
ADR practitioners use a variety of techniques and more-or-less institutional mechanisms to resolve disputes. All are variations of negotiation, mediation, arbitration, and adjudication. The ADR movement recently has focused attention on a number of techniques that are often called “hybrids.” These include neutral experts, complaint programs, summary juries, minitrials, fact-finding, grievance procedures, mediation/arbitration, court-annexed arbitration, and ombudspersons.12 The TOA-style ombudsman is merely another ADR technique.
According to the Code of Ethics of The Ombudsman Association, an Ombudsman is simply “a designated neutral.” Four of the code’s five sentences talk only of the importance of maintaining confidentiality, and the document says nothing about the office’s functions except that one may draw inferences from the final sentence: “When making recommendations, the ombudsman has the responsibility to suggest actions or policies that will be equitable to all parties.” An associated document, the TOA Standards of Practice, does mention the office’s function:
The mission of the organizational ombudsman is to provide a confidential, neutral and informal process which facilitates fair and equitable resolutions to concerns that arise in the organization. In performing this mission, the ombudsman serves as an information and communication resource, upward feedback channel, advisor, dispute resolution expert and change agent.
The only other matters covered in the one-page Standards-of-Practice document are reiterations of the importance of confidentiality and assertions of formal and informal privilege regarding any of its internal or external communications. These preoccupations point to the offices’ perceptions of vulnerability to interference from the organization’s managers.13
The Standards-of-Practice document used the term “organizational ombudsman,” and that title is often used to describe these offices. Much of the time, however, these officials use the unadorned term ombudsman to describe themselves. It is this usage that many real Ombudsmen find an objectionable attempt to appropriate the ombudsman concept. If TOA had decided to call itself The Organizational Ombudsman Association and consistently talked of the organizational ombudsman, I believe that no objection would have been raised but that real Ombudsmen would have endorsed the organization’s objectives.
Some organizational ombudsmen are not public or private officials. Instead, they are consultants hired to provide ombudsman services for corporations. At first blush, this may seem to many real Ombudsmen a perversion of the concept, but some such consultants argue strongly that they have more actual independence in investigating employee complaints than do organizational ombudsman who are employees of the corporation. Of course, outside observers may surmise that consultants may feel constrained to behave prudently in hopes of having their contract renewed.
Most of the organizational ombudsman offices are not highly structured. Even whether they receive “complaints” or not is a matter of controversy among members of TOA; note that the Standards-of-Practice document talks vaguely only of “concerns that arise in the organization.” But even more volatile within TOA is the question of whether or not “investigations” are conducted. Recall that the above-quoted mission statement refers only to providing a disembodied “neutral and informal process” of an undetermined sort. Furthermore, many organizational ombudsmen comment about not keeping any records of their activities at all. The Standards of Practice say:
An ombudsman keeps no case records on behalf of the organization. If an ombudsman finds case notes necessary to manage the work, the ombudsman should establish and follow a consistent and standard practice for the destruction of any such written notes.
Such a provision is likely to sound bizarre to real Ombudsmen, who do keep bureaucratic records, which are protected by law. TOA’s provision is, of course, an outgrowth of the difficulties that these organizational ombudsmen have with maintaining confidentiality.
The actual powers of organizational ombudsmen usually are slight, as is illustrated by the fact that the officials tend to devote much attention to the importance of generating options for their clients. For example, Mary Rowe, Ombudsperson and Special Assistant to the President at the Massachusetts Institute of Technology, has made this comment:
People who call upon an organizational ombudsperson typically need options and usually can be offered a number of different options from which to choose. In fact, the customary practice of offering options, rather than choosing for a complainant how a complaint will be handled, helps to define the profession of ombudsmanry within organizations.14
A comment of this sort might be unintelligible to a real Ombudsman, who seldom involves the original complainant in an investigation—except, perhaps, at the very end. The notion of generating options arises from a situation in which organizational ombudsmen typically have little power over the organization, and the complainant is asked—in effect—to become his or her own ombudsman by helping to generate and evaluate optional courses of action.15
To be sure, organizational ombudsmen can be effective if they have the support of a powerful patron, a boss, and if they have personal resources that enable them to be effective. And I have no doubt that many of them have both of those. Certainly, the organizational ombudsmen whom I know are personally very effective individuals. Furthermore, I believe that many organizational ombudsmen do good work, at least in helping particular individuals in the short term. My overall conclusion is, however, that these offices are simply mediators.
Real Ombudsmen are not, however, generally described as mediators. Although they might sometimes perform some functions as mediators, Ombudsmen are institutions that are involved in doing impartial investigations of citizens’ complaints. An Ombudsman receives the complaint and then conducts a thorough and dispassionate investigation searching for points of law and proper procedure and questioning whether a bureaucratic agency may have done an injustice to a citizen.
At the conclusion of the investigation, a real Ombudsman makes a recommendation—only an informal recommendation usually is required—about how the case should be resolved. Although Ombudsmen do not have the power to reverse bureaucratic decisions, they use whatever political powers they have available to try to enforce their recommendations. This function involves the use of political power, authority, influence, and persuasion. Yes; the function may occasionally involve mediation, but being an Ombudsman is not to a large degree a mediating function in the same sense in which that function is the keystone of TOA-style ombudsman’s operations.
The accompanying Table compares real Ombudsmen with two kinds of quasi-ombudsmen and with non-governmental designated neutrals (or TOA-style ombudsmen). The two kinds of quasi-ombudsmen are executive ombudsmen and agency ombudsmen (or internal complaints officials).
The four categories of offices are compared on three dimensions: the organizational dimension (whose eleven components were mentioned above), the jurisdictional dimension, and the power dimension. I hope that after the preceding discussion about the offices’ definition, the table will be mainly self-explanatory.
Variations exist within the categories of offices. For example, some executive ombudsmen have a great deal of political power that comes from their close relationship with the chief executive; some can even reverse administrative decisions. It is noteworthy that the three groups other than the real Ombudsmen vary greatly on many of the organizational dimensions. Many agency ombudsmen are very much like many non-governmental designated neutrals.
I conclude with the recommendation that reformers not devote energy to the creation of TOA-style ombudsman organizations for the federal government. Such offices already have been created in several agencies, such as the Smithsonian Institution, the United States Information Agency Broadcasting Services, the U.S. Secret Service, the Department of State, and the Department of Energy.16 The problem I identify with undertaking such endeavors is that those who do so are setting the sights too low in creating only a weak mediator. I think it would be preferable to devote energy instead to creating a real Ombudsman .
Of course, this country cannot go as far as New Zealand has gone in passing a law saying that the term “ombudsman” cannot be used by an office without approval of the chief ombudsman.17 But definitions are extremely important. I am reminded of Lewis Carol’s passage in Through the Looking Glass, in which he reports the following exchange between Humpty Dumpty and Alice:
“When I use a word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean, neither more, nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master, that’s all.”
I think we should be careful in re-defining an institution that is already well defined, namely, the Ombudsman. And it is appropriate to recall some of the questions that I posed about institutional transfer at the beginning of my talk: For example, How can we know when the essence of an institution has been transferred and not just the form—or even the name?
An important thing to remember about the Ombudsman is that it is already a low-powered institution. The office has enough power so that it can be effective, but just enough. If one sharply reduces the power given to an institution labeled Ombudsman, the prospects for it being effective in helping citizens achieve administrative justice over the long term are not very favorable.
Author’s note: The present paper was based on a transcription of the ABA address, which I have edited and expanded in some places.
ABA and Section Membership information
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
ABA Section of Administrative Law & Regulatory Practice
740 15th Street NW
Washington, DC 20005-1022
E-Mail: adminlaw@abanet.org
