ADMINISTRATIVE & REGULATORY LAW NEWS
Ombudsman Offices in the Federal Government--An Emerging Trend?
By Jeffrey S. Lubbers 1
The Ombudsman is decidedly not a new concept. It is a Swedish word meaning "agent" or "representative," and its Scandinavian origins have been traced to 1274. The first national Ombudsman was established in Sweden in 1809, and the concept began spreading to the rest of Scandinavia and Down Under (New Zealand and Australia) in the Twentieth Century. But its growth in American soil has been halting until about 20 years ago--when ombudsman offices began to spread to state and local governments, prisons, universities, newspapers, and corporations. And now federal agencies are jumping on the bandwagon by creating such offices--in some cases with Congressional blessing or mandates. For example, the recent Small Business Regulatory Enforcement Fairness Act of 1996 created the Small Business and Agriculture Regulatory Enforcement Ombudsman (15 U.S.C. §657). Other interesting statutorily mandated ombudsmen include the "Asbestos Ombudsman" (15 U.S.C. §2652), the "Construction Metrication Ombudsman (15 U.S.C. §2051), and the "Aircraft Noise Ombudsman (49 U.S.C. §106). A computer search of LEXIS' US Code Service reveals 53 documents containing the word "ombudsman." Does this development portend a trend? Will there soon be a "seeing eye dog" Ombudsman in every agency to help resolve various types of agency disputes much like there is now an internal "watch dog" Inspector General to guard against waste, fraud and abuse?
In cooperation with the United States Ombudsman Association (USOA) and The Ombudsman Association (TOA), the Section sponsored a day-long program in Washington, D.C., in conjunction with its Spring Council meeting on April 18. The morning panel featured agency ombudsman from four major federal agencies (Customs Service, FDA, IRS, and EPA), an agency Inspector General (IG), a former State ombudsman and a leading academic expert. Each of these agency ombudsmen dealt with problems encountered by agency customers or regulatees and thus were seen as "external" or "regulatory" ombudsmen as opposed to those who functioned as "internal" or "workplace" ombudsmen. The latter type of official was discussed in the program's second panel, and featured ombudsmen from the Secret Service, FDIC, and from American Express.
What emerged from the panels was a general consensus that federal agencies could benefit from establishing ombudsman offices. However questions were raised about the need for standards in establishing, operating, and protecting such offices; the arguable need for different standards for "external" and internal" ombudsman offices; and their relationships with other federal officials such as IGs and agency dispute resolution specialists. It was agreed that the ABA and this Section could play an important role in addressing some of these questions.
The term "ombudsman" is controversial in several senses. First, some people are put off by its "foreign-ness," arguing that it lacks a ready meaning to most citizens. Despite the fact that five states, 20 federal agencies, and over 1000 corporations have established such offices, alternatives names have been used such as "advocate," "citizen's representative," and "mediator." For example, legislation recently renamed the "Taxpayer Ombudsman" to "Taxpayer Advocate." Participants at the conference seemed to agree that the alternatives themselves were somewhat misleading, and that the word is becoming sufficiently well known. Second, the word, even though a foreign word, appears to lack gender neutrality. Thus, variations such as "ombudsperson," "ombuds," and even "ombuddy" have attained respectability. More substantively, there was a definite concern on the part of the "classical" ombudsman community that the term has lost some of its distinctiveness by being used (officially or unofficially) to apply to officials who serve other functions or who lack some of the requisite independence, powers or access to top management that characterized the original Swedish model and its "classical" descendants.
The fear on the part of some that the coin of the realm was being devalued by over- or mis-use is clearly related to the concern that appropriate standards for the establishment and operations of the office be created and followed. Some important work has been done in this regard already. The original 1969 ABA House of Delegates Resolution (sponsored originally by a Committee of this Section chaired by Professor Kenneth Culp Davis), with an amendment added in 1971, enumerated 12 "essentials" for a statute creating an ombudsman office. 2
These guidelines were then incorporated into the Model Ombudsman Statute for State Governments in 1974 (revised and updated in 1997). Also in 1990, the Administrative Conference of the US (ACUS) adopted Recommendation 90-2, "The Ombudsman in Federal Agencies," which urged agencies with significant interaction with the public to consider establishing an agency-wide or program specific ombudsman, and set forth guidelines concerning powers, duties, qualifications, term, confidentiality, limitations on liability and judicial review, access to agency officials and records, and outreach.
Relationships With IGs
Under the Inspector General Act of 1978, major federal departments and agencies have IGs who are appointed either by the President or agency head, possess great independence and have broad investigative powers to uncover and report on waste, fraud and abuse in agency programs. It is apparent that agency IGs and ombudsmen might potentially clash on certain matters or at least overlap in their jurisdiction. The IG on the Section program acknowledged the possibility of some friction, but gave her personal view that she would welcome the creation of ombudsman offices to handle problem resolution and to free the IG offices to concentrate on their investigatory and audit work. It is not clear that this view is shared throughout the IG community, however, and some interesting questions were posed by audience members about the potential for IGs subpoenaing ombudsman records and vice versa.
The subpoena question is one facet of the general concern expressed among ombudsmen that the confidentiality of their documents and communications is crucial to their effectiveness. To some extent, this concern has been ameliorated with regard to federal agency ombudsmen by a surgical amendment to the Administrative Dispute Resolution Act in that Act's 1996 reauthorization. That Act, enacted in 1990 protects the confidentiality of documents possessed by and communications engaged in by "neutrals" involved in resolving government disputes. The 1996 Amendment added "use of ombuds" to the definition of "alternative means of dispute resolution" covered by the Act and its protections.
The Future of the Agency Ombudsman
Since the 1990 ACUS study and recommendation concerning agency ombudsmen, the popularity of the idea has grown significantly. In 1993, the President's National Performance Review (NPR) recognized the potential usefulness of the concept in increasing public participation in agency proceedings and in improving customer service. A "Coalition of Federal Ombudsmen" was created by federal ombudsmen themselves to provide information sharing and some measure of coordination among the various ombudsman offices. Its effectiveness was saluted recently by NPR which awarded a "Hammer Award" to the Coalition.
The ombudsman's role in federal agencies clearly is becoming better known. And there seems to be a fair amount of bi-partisan support for the concept in Congress. With staff reductions in many agencies, the need for problem resolution between regulators and the regulated (or affected third parties) is becoming more acute. Similarly, as workplace tensions increase due to the dislocations caused by downsizing, and EEO considerations, the need for internal problem-solving is growing equally fast. Whether external and internal ombudsmen are sufficiently similar to appropriately share the same title and attributes is an open question, but it is clear that whatever the resolution of that question, ombudsmen will have an increasingly important role to play in and for agencies in the years to come.
1. Fellow in Administrative Law and Visiting Professor, Washington College of Law, American University; moderator of the morning panel of the Section program described in this article.
2. (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 a 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 restraints 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 may find 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 an answering statement; (12) immunity of the ombudsman and his staff from civil liability on account of official action.
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