Ombudsmen

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Ombudsmen

An ombudsman is an official, independent investigator of citizens' grievances against public agencies. Because the Swedish word ombud can be translated into English as representative, agent, or delegate, a lawyer, union leader, or member of parliament may be legitimately called an ombudsman in Sweden. But a particular ombudsman—the Swedish Parliament's Justitieombudsman, established in 1809—was the direct progenitor of the governmental officials of other countries given the name of ombudsman. In a prebureaucratic age, the legislature created the Justitieombudsman as its watchdog over the executive and as a rival to an older institution, the Justiekanzler, or the King's Chancellor of Justice. As the scope of government expanded in the democratic era, Parliament's ombudsman evolved into an institution mainly concerned with resolving citizens' grievances against bureaucratic agencies. Because the institution came to be perceived as effective in performing this function, which seemed to be increasingly important, in the second half of the twentieth century a number of ombudsmen were created around the world.

defining the ombudsman: functions and powers

Finland created an ombudsman under Swedish influence in 1919, and Norway created a military ombudsman in 1952. But the institution only began to gain worldwide attention when the first Danish ombudsman, Dr. Stephen Hurwitz, began to speak and write about his function in English after his appointment in 1955. New Zealand's appointment of Sir Guy Powles as the first Anglo-Saxon ombudsman in 1962 and his subsequent lectures and articles also contributed to the institution's popularity. During the next two decades, at least fifty-five jurisdictions, including eighteen countries and many states (or provinces), counties, and cities, created ombudsmen. The concept of the ombudsman became so popular that authors began to write that "ombudsmania" was sweeping the world. Enthusiasm for the notion has continued, and many additional offices have been created—not all of which possess the essential characteristics that caused the original institution to be viewed as highly attractive.

As the Swedish Ombudsman evolved, it developed important characteristics, which were—at least in the first two decades of the office's proliferation—passed on to the newer offices that became, in turn, models for the creation of additional ombudsmen. Important features of these characteristics were captured in a 1974 resolution of the International Bar Association (IBA), which defined an ombudsman as:

an office provided for by the constitution or by action of the legislature or parliament and headed by an independent, high-level public official who is responsible to the legislature or parliament, who receives complaints from aggrieved persons against government agencies, officials, and employees or who acts on his own motion, and who has the power to investigate, recommend corrective action, and issue reports. (SA Law Commission 1991, Vol. 3, P. 1222)

The IBA definition mentioned that the ombudsman is independent, meaning that the office is not subservient to the executive. Thus, the Swedish Justiekanzler or a modern inspector general, whether military or civilian, would not qualify as an ombudsman. But the IBA did not mention three additional important characteristics of the ombudsman in its definition: the ombudsman is nonpartisan, impartial, and justice focused. First, a nonpartisan orientation means that the ombudsman is not a political tool used to conduct investigations that might discriminate between party and nonparty members, or either attack or apologize for the policies administered by public agencies. Second, the ombudsman is an impartial investigator. Sometimes authors describe the ombudsman as a citizens' advocate, but advocacy is, in fact, outside the ombudsman's role. Even though the office is oriented toward citizens and is intended to promote their interests in a broad sense, during investigations an ombudsman maintains a stance of impartiality, favoring neither the complaining citizen nor the accused agency. This stance helps the ombudsman maintain the cooperation of bureaucracies, which is needed because the ombudsman is a small office with little authority and would have difficulty conducting successful investigations if bureaucracies perceived it as an enemy. Third, rather than being an advocate for citizens or an apologist for bureaucracies, the ombudsman focuses on promoting administrative justice. Such matters as the righting of bureaucratic wrongs and the promotion of fairness are prominently mentioned in ombudsman statutes as justifications for creating the office. And when an investigation finds that an agency's action was correct, but the citizen did not understand the reason for it, the ombudsman is likely pleased to have the opportunity to vindicate the agency and educate the citizen.

Although it may seem ironic, the ombudsman is established as a small bureaucracy. An office that hopes to have success over the long term in auditing large bureaucracies must itself have a hierarchical institutional structure, operate by rules and standard procedures, keep good records, and so forth. The filing of complaints is made as inexpensive and risk-free as possible, and the office attempts to help citizens quickly. The jurisdiction of ombudsmen varies. Usually ombudsmen do not intervene until an administrative action has been completed, and many refuse to investigate a matter until a citizen has appealed to every available internal review body. Some ombudsmen have jurisdiction over all governmental levels; others are limited to certain levels. Some ombudsmen have jurisdiction over most governmental agencies within a given level; others are limited to certain agencies (e.g., prisons or the police). Some ombudsmen have jurisdiction over most actions of agencies within their purview; others are limited to allegations of "maladministration."

A central feature of the ombudsman is its power to examine virtually any files pertaining to a citizen's complaint and to interview administrators under oath. Although its investigatory powers are extensive, the ombudsman's dispositional powers are not. Unlike most other kinds of citizen complaint-handlers, ombudsmen typically conduct thorough investigations, hoping that the agency will be persuaded to comply with their recommendations. In fact, agencies normally do decide to accept the ombudsman's assessment of their actions. If the agency is not persuaded, however, the ombudsman's only recourse is to make a formal report to the legislature. As a result of the ombudsman's negative reports—which normally are highly publicized—politicians almost always reverse the position of the agency. Ombudsmen frequently resolve the problems of individual citizens; subsequent administrative reforms, which might affect many people in the future, also occur regularly.

changes in the ombudsman's structure

As various jurisdictions have attempted to create ombudsmen around the world, many changes have been made to the office's structure. Some of the transformations were minor; some were sufficiently noteworthy to raise the question of whether an ombudsman or some other kind of institution was being established. Changes concerning citizen accessibility are illustrative. The New Zealand legislation required that citizens pay a small fee to file a grievance with the ombudsman. The fee was intended to discourage frivolous complaints, but it probably has had little real impact on limiting the ombudsman's reach because the fee is small and the office waives it if the amount would cause hardship for the citizen. An example of a more serious institutional change limiting accessibility was the decision of two ombudsmen, Britain's Parliamentary Commissioner for Administration (in 1967) and France's Médiateur (in 1973), to require that citizens register their complaints with members of parliament, who would then forward complaints deemed worthy of investigation to the ombudsman.

The question of whether a supposed "ombudsman" qualifies as a true ombudsman arises with some of the human rights ombudsmen that were created in the last three decades of the twentieth century in the Iberian Peninsula, Latin America, Eastern Europe, and Asia. For example, the Philippines's Ombudsman (created in 1987) has the authority to direct public officials "to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties" (Constitution of the Republic of the Phillipines, Article XI, Section 13). Such authority goes far beyond that of traditional, or classical, ombudsmen. In addition, these human rights ombudsmen were expected to help their countries' political institutions make the transition from dictatorship to democracy by protecting citizens. How effective these offices have been is unclear, and skepticism exists about whether an ombudsman can succeed in changing a political culture and curing severe problems of institutional capacity in defending citizens.

the ombudsman in the united states

Determining whether an office called an "ombudsman," in fact, meets the definition of that term is especially acute in the United States. Five states created classical ombudsmen: Hawaii (1969), Nebraska (1971), Iowa (1972), Alaska (1975), and Arizona (1996); a few local entities also created them. But most of the many hundreds of U.S. offices fit into a "quasi-ombudsmen" category, rather than the classical category. They are a type of "executive" ombudsman; that

is, they process citizen complaints, but report to an executive—such as a governor, mayor, or university president. (Some higher education ombudsmen, however, do maintain a significant degree of independence from an executive because they have an additional reporting relationship to bodies representing students, faculty, or staff.) These offices may have comprehensive jurisdiction, or they may be single-sector offices with jurisdiction over such sectors as social services or mental health. But the vast majority of executive ombudsman offices belong to the category's weakest subtype: internal ones that report to an agency head. For example, several federal agencies—including the Environmental Protection Agency (EPA), the Customs Service, the Federal Drug Administration (FDA), and the Internal Revenue Service (IRS)—have internal executive ombudsmen.

A final type of executive ombudsman is the "advocate" ombudsman; rather than conducting impartial investigations, this official assumes that a complainant's charges against an agency are correct, which, in turn, fosters an adversarial relationship with the agency. Particularly at the state level, advocate ombudsmen have been created for such groups as consumers, businesses, and abused children. Federal law requires every state to appoint a long-term care ombudsman, which performs as an advocate for the elderly. Although executive ombudsmen help many citizens and a particular executive might give an executive ombudsman significant degrees of independence, this official's independence may be withdrawn at any time—as happened in 2002, when the administration of President George W. Bush debased the EPA's National Ombudsman because the office persisted in pursuing politically embarrassing investigations.

The mediator ombudsman, which is the type of American quasi-ombudsman farthest from the classical model, became popular toward the end of the twentieth century. The mediator ombudsman was an offshoot of the Alternative-Dispute-Resolution (ADR) movement. Many corporations—largely inspired by the desire to obviate lawsuits—began to create mediator ombudsmen in the 1970s, and many public agencies that had not previously devised some type of ombudsman with linkages to the classical model later created a mediator ombudsman. Mediator ombudsmen, which usually focus on an organization's personnel function and prefer to be called "organizational ombudsmen," are the weakest of the internal ombudsmen. Rather than striving for administrative justice for those citizens filing complaints, they are process-oriented and simply seek to resolve disputes through mediation. Bringing the parties together, facilitating, and "getting to yes" is the function of the mediator ombudsmen—some of which are contractors. Of course, quasi-ombudsmen often perform useful functions, but whether they belong to the executive, the advocate, or the mediator subtype, they lack crucial attributes of the classical office and could not be expected to perform its functions. Some examples of one or more of each subtype of the quasi-ombudsman office have emerged in several other countries, yet all the subtypes exist in luxuriant profusion only in the United States.

See also:Sweden.