MUNICIPAL GOVERNMENT OMBUDSMAN

By Michael Mills, Ombudsman,
City of Portland, Oregon, USA*

Government ombudsman structures vary greatly from one country to another, and within a particular country as well. There are few places that one will find a greater number of ombudsman adaptations than in the United States of America. We have been slow on establishing ombudsman offices in governmental structures, yet we find the concept being used in a growing number of large corporations and a great many institutions of higher education to resolve internal complaints and concerns. The name has also been used by private businesses that serve critical public needs, such as newspapers, to provide public involvement in the oversight of the company. We have come to recognize the concerns raised by fellow ombudsman in the United States and elsewhere that the proliferation of the term “ombudsman” outside of governmental entities can lead the general public to become confused over the true concept of an ombudsman.

The United States Ombudsman Association** (USOA) has been making an effort to support the ombudsman concept by assisting jurisdictions in creating new ombudsman offices at all levels of government. In our effort to create new offices, we have recognized that we must have some flexibility and tolerance in the type of offices that will be condoned and supported. It was a conscious decision on the part of the USOA to permit and encourage executive ombudsman offices to join the USOA in addition to those offices established under the traditional legislative model. That decision, made some seven years ago after much debate, served to increase the size of the Association to where it could continue as a viable organization with the resources to support the creation of new offices. In making the decision to be more inclusive, the USOA did make clear that the preferred ombudsman model was the traditional legislative model designed along the parameters established by the International Bar Association.

While the number of newly created offices is small, the USOA has now added specialty ombudsman offices from both federal and regional governments, and executive ombudsman offices from state and local governments. The office in which I serve, for example, was established by Mayor Katz of Portland, Oregon, when she first entered office in January of 1993. The limitations of an executive model compared to a legislative model were understood. The Mayor’s desire was to examine how the ombudsman functioned, and to evaluate the service it provided to the public. With that knowledge, she could determine if a more traditional model would be more beneficial. The Mayor is not opposed to considering a restructuring of the ombudsman office in a manner that would provide broader ownership among other elected officials as it becomes established in the governmental structure. Several legislative ombudsman offices at the state/commonwealth level originated from executive ombudsman offices.

The City of Portland Ombudsman

The City of Portland operates as a commission form of government, which equates to having five Council members (including the Mayor), who serve in both executive and legislative capacities. This form of government is very unusual in the United States for a city with a population now over 500,000, and the center of a metropolitan area of 1.6 million people. The four Commissioners administer the operations of selected city bureaus that are assigned to them by the Mayor. They have these administrative duties in addition to their legislative responsibilities as members of the City Council. Without a clear boundary between the executive and legislative branches within Portland’s governmental structure, establishing the location for an ombudsman presents a variety of options. The creation of the office within the Mayor’s Office was a result of her initiative in beginning the service. Ownership of the Ombudsman office among the other Commissioners could be accomplished in a number of ways, including participation in the selection process, or by providing the other four Commissioners the opportunity to confirm the Mayor’s selection.

The Ombudsman’s office was initiated and has continued for the first 20 months with a permanent staff of two and a volunteer staff that averages 7 people. Most of the volunteers are recruited from educational institutions. The volunteer staff quickly became an integral and essential part of the Ombudsman office. While this staff size is unquestionably at a marginal level to respond to the some 6,000 inquiries that are received annually, it was enough to initiate an office that could demonstrate its worth in providing citizens more direct access to their government. By initiating the office at a minimal size within the Mayor’s office, rather than a separate office, it was much easier for it to be created in our current financial climate of budget reductions rather than budget additions. A larger separate office would have been more difficult to have approved. By demonstrating the value of the service provided, there is a greater likelihood of having the office gain additional political and financial support.

What the small staff size has meant in terms of capabilities, is that our service becomes in large part a service of empowering citizens to resolve their own complaints and grievances by providing them the knowledge whereby they can initiate the review without direct intervention by the Ombudsman. Those that have already made such an attempt, or after following our suggestions have failed to receive adequate results, then have their complaints reviewed by the Ombudsman. As systemic problems within the municipal bureaucracy surface, the Ombudsman can then delve more deeply into the policies that support such behavior in an attempt to reform policies where appropriate. While our resources do limit the number of policy issues that we can investigate, the ones that we are able to review are usually accepted. The informal development of solutions with the Mayor or a Commissioner help to avoid posturing that can accompany formal reports.

The Municipality of Anchorage Ombudsman

The Municipality of Anchorage created an Ombudsman Office in 1975 when the governments of the City of Anchorage and the Anchorage Borough (a subdivision of the State of Alaska which encompassed the City of Anchorage) consolidated through the passage of a Municipal Charter by a vote of the population. It was in part a result of the citizens’ concerns that the creation of this new mega-government would be less responsive to their voices, that they elected to create an Ombudsman to provide them with oversight and accountability of their new government. It is noteworthy to know that the State of Alaska had only a short time earlier, within the same year, created a legislative ombudsman with jurisdiction over state government. This helped to provide a higher level of awareness of the ombudsman concept.

The Anchorage Municipal Ombudsman was formed as a traditional legislative ombudsman, one of only a handful at the time. The Ombudsman is selected by and accountable solely to the 11 member Municipal Assembly, the local legislative body. The Assembly was not able to establish by law the powers of the ombudsman until 1977, and only after the Mayor vetoed one of the final versions of the law based on opposition to granting the Ombudsman subpoena powers to compel testimony or obtain documents. The Assembly eventually passed the legislation with the subpoena powers. The law lacked the protective provision that would only allow removal of the Ombudsman for cause with a two-thirds majority vote of the Assembly.

Fourteen years later a significant oversight in the law was recognized. Unlike the State Ombudsman, the Municipal Ombudsman did not have protection from having to testify in a court of law over matters coming before the office, nor was the Ombudsman granted immunity from civil prosecution for actions taken while fulfilling the duties of the office. The purpose of these provisions

[is] to protect persons and information coming before the Ombudsman, and to protect the Ombudsman from threats and intimidation by way of the courts. Since these laws were enforceable in the State of Alaska Court System, only state legislation could grant such protections. Attempts by the State Legislature to pass this protective legislation were subverted by the Governor of the State at the urging of the Mayor of Anchorage. The Mayor’s opposition was in part due to his displeasure over several of the Ombudsman’s critical reports involving some of his political appointees, and his belief that those governmental officials criticized by the Ombudsman should have the right to challenge the Ombudsman in the courts rather than by public opinion. Despite several threats of litigation against the Ombudsman, no actions were actually filed. The level of protection remains in question.

The Anchorage Ombudsman office continues to gain in public popularity and now has a staff size of four along with several interns. The overwhelming passage of a Charter amendment in 1990 granting the Ombudsman jurisdiction over the Anchorage School District was a strong indicator of the public support for the ombudsman concept.

Drawing Comparisons

Without the establishment of ombudsman powers by law, can an ombudsman effectively perform the functions expected of an ombudsman? I believe the answer is yes. While there are certainly limitations to having an executive ombudsman, it is, for the most part, possible to provide the public service expected. The viability of an executive model may be particularly promising at the local government level where there is the highest expectation and need for access to government. Both ombudsman models can provide the freedom of access that is desired in order to reach all segments of the population, particularly those whose voices usually go unheard. There is the additional assurance that government will listen to its constituents by having an ombudsman. Both types of offices provide citizens an opportunity to have their concerns addressed and resolved without the expense and often irreparable damage associated with other alternatives; and both maintain the objective of resolving the systemic causes of problems within government rather than merely settling the concern of the one individual who happened to focus light on an issue. There are, of course, real differences which must be considered when selecting between the models.

The executive ombudsman, being accountable to the government’s chief executive officer, is not, in fact, independent of the government. While the individual can operate in an impartial manner, they may not be considered by the public as being so when they serve at the pleasure of one elected executive. The degree to which the individual is impartial in dealing with the citizens they serve is largely dependent upon the values of the elected official to whom they are accountable. While I happen to enjoy serving in an office where the values of fairness and equitableness are shared in common, there is no guarantee of that being maintained beyond the term of the current Mayor. Furthermore, without a provision in the City Charter or our laws, there is little assurance that the individual or the office will exist after a change in leadership. In Oregon, we have witnessed first hand the gradual reduction of an executive ombudsman office at the state level from a very visible resource within the State to a small number of individuals serving on the Governor’s staff. This occurred not as a result of political ill will toward the office, but rather because of increased vulnerability to major budget reductions since it was an agency supporting the Governor rather than an independent office funded by the legislature with its sole purpose being to serve constituents. This is not to say that a legislative ombudsman is immune from political ill will, only somewhat less vulnerable.

While it is helpful that the Mayor and City Commissioner positions are non-partisan in the City of Portland, there is still a greater potential for the ombudsman to be influenced by political motives when not established in the most neutral and independent manner possible, which is usually considered to be the legislative body in its entirety. One could debate that if elected officials are conscientious enough to create an ombudsman to serve their constituents, then they should be good guardians of the ombudsman whether it is born out of the legislative or executive branch of government.

There is, of course, still the issue of public perception. How does the average citizen perceive an ombudsman who operates as an appendage to an elected executive such as the Mayor, as opposed to the legislative body as a whole? While most would agree that an ombudsman housed within the Mayor’s Office would not appear as impartial as a more independent office, after 20 months in my current position within the Mayor’s Office, I have rarely found my impartiality to be questioned. What tends to be of greater concern are the competing demands of being an ombudsman, and the responsibility of being the constituent liaison for the Mayor. While this has not resulted in a conflict of philosophy, it has created competition for the limited staff resources available in the Ombudsman office.

In more specific terms, this means that the City of Portland Ombudsman office has the responsibility to answer specific questions pertaining to legislative actions and executive decisions in addition to our ombudsman responsibilities. For example, this summer the Mayor proposed an amendment to the City’s Health Benefits Program, which was approved by the City Council, to include medical coverage for domestic partners of city employees. This decision provided medical coverage for partners of unmarried couples and partners of the same sex who lived together as a family. As Ombudsman, I had the responsibility to respond to questions or objections from the public regarding the new medical coverage. Although I happened to agree with the Mayor and the City Council’s decision, I would have been called upon to explain the reasoning for the decision and the implications of the decision whether I, as an ombudsman, agreed that the decision was fair or not. Had I not agreed, my recourse would have been to present my reasons for objecting informally to the Mayor. I would not have been in a position to disagree publicly. This responsibility would be similar to a legislative ombudsman having to explain or justify actions of the legislative body from which they were appointed. In such a situation, one can easily find themselves defending a legislative action rather than objectively providing impartial information on the subject. While the prospect for conflicts may appear alarming, in reality we have not had any significant disagreements.

There are other distinct differences that become apparent when drawing comparisons between the two different ombudsman structures. Some of these differences affect the manner in which an ombudsman operates. One of these primary differences is the lack of subpoena powers on the part of the executive ombudsman. This power, considered one of the essential elements of an ombudsman, is one of the few true powers granted to an ombudsman. Citizens may sometimes forget that an ombudsman serves in an advisory capacity and cannot require or mandate that their recommendations be followed. The subpoena power authorizes the ombudsman to obtain records or compel testimony from uncooperative public officials during the course of an investigation. As a legislative ombudsman, I infrequently found the need to exercise the power of subpoena infrequently. This was due largely to the general knowledge of its existence among public employees. As an executive ombudsman within the City of Portland’s government, I must now rely on the Mayor to grant subpoena power as provided in the City Charter.

Has the lack of subpoena power proved to inhibit the work of the executive ombudsman in Portland? To date, there has not been an instance where one could conclude that a review has suffered as a result of not having the power of subpoena. Several other conclusions could be drawn, however. Given our staff capabilities, we are limited in the number of formal investigations that we can conduct. These are the types of cases that would be more likely to require the use of subpoena powers. In addition, those aware of the Ombudsman office may be more reluctant to submit serious matters if they are unsure of whether the office has the powers necessary to conduct the investigation.

A result of not having subpoena powers is that public employees are unaware of the importance of responding to the Ombudsman, and unaware of the benefits of having an Ombudsman. When the executive ombudsman requests information or documents which may be considered to be confidential in nature, they are usually provided with the belief that the position is an adjunct to the Mayor, rather than an independent body. The perception is that an Ombudsman request is a request from the Mayor even when the request is made directly by the Ombudsman. While this perception will almost always negate any need for subpoena powers, it may also confuse public employees over the role of an ombudsman. When making recommendations or requesting information, the executive ombudsman derives power and influence more often from the elected official than from public opinion, which the legislative ombudsman relies upon.

The commission form of government under which Portland functions poses additional operational dynamics for the Ombudsman. City bureaus are assigned at the discretion of the Mayor to the other four City Commissioners, as well as to herself, to administer. According to the bureau assignments, either the Mayor or one of the Commissioners assigned will have the administrative authority to operate their bureaus within the parameters of the budget approved by the Council as a whole. When reviewing matters relating to one of the bureaus within the Mayor’s jurisdiction, or portfolio, there is a high degree of latitude afforded the Ombudsman on how to pursue the review. However, as one might expect, reviews or investigations of bureaus within the portfolios of the other Commissioners may be examined differently.

The other four Commissioners each have their own preferred methods of responding to complaints received by the Ombudsman concerning bureaus for which they are responsible, and for which they will be held accountable. Several Commissioners have requested that they receive all complaints directly, and be given the first opportunity to investigate and respond. One Commissioner has allowed the Ombudsman to pursue concerns directly with the bureau involved while simply notifying him when the issue is not able to be resolved. Customizing the process for each Commissioner can be difficult, and may vary depending on the issue. Sometimes Commissioners may want to be involved, and at other times they may prefer to distance themselves from the case. The other Commissioners show some reluctance to use the Ombudsman. Additional trust building is needed to alleviate skepticism that the office is being used politically by the Mayor.

Another result of the Ombudsman being physically and organizationally attached to the Mayor is that it will take longer for the office and the concept to obtain its own identity. Most of the contacts received continue to reach us a result of a citizen calling for the Mayor rather than the Ombudsman. While this is not necessarily bad, without public knowledge of the Ombudsman, we may miss hearing from certain members of our community who have grievances, but who may be reluctant to report their concerns to the Mayor due to her leadership role within the government. Increased visibility of the Ombudsman will create a stronger faith among our citizens that the City is committed to listening to and resolving their concerns.

There are certain political realities within the current United States democratic system that must be dealt with in order for elected officials to continue in office. It is no longer sufficient for an elected official to simply fairly represent and fulfill their constituents needs. Today, an elected official must continually demonstrate to the public, and particularly to the news media, their accomplishments if they expect to be re-elected to office. This reality is, in part, a result of the loss of faith in government which resulted over a number of years when our governments were less responsive to our citizens. The elected officials who align themselves with concepts, such as the Ombudsman, which serve to restore citizens’ faith in their governments, will be able to take credit for the accomplishments resulting from having an Ombudsman. This helps explain why it may be easier to create a new Ombudsman office when it is aligned with an elected executive.

While there may be some degree of loss in the perception of impartiality by establishing an Ombudsman in an executive office, there is the added benefit of the Ombudsman being viewed more uniformly by elected officials as an asset rather than a political liability. Since the Ombudsman reviews only administrative acts, only the executives and administrators are subject to criticism from the Ombudsman. In looking at the Anchorage Ombudsman office, the Mayor feared the office was being used by the legislative body to his political detriment, and was therefore a liability. Better communications between the two could have helped remedy this situation, but the political climate was not conducive to that process. Anchorage recently elected as Mayor, a past Chairman of the Municipal Assembly, the Assembly’s link to the Ombudsman. This knowledge and experience of the Ombudsman concept should prove promising for a cooperative relationship between the Ombudsman and the Mayor in Anchorage.

Given the structure in Portland, conflict is uncommon between the Mayor and the Ombudsman since issues are confronted informally in a collaborative manner. There is greater access, and therefore opportunity, to influence public policy. Conflict between the Ombudsman and the other Commissioners is rare, primarily because issues are normally resolved directly with the officials involved thereby avoiding the need to issue critical public reports. Contact between Commissioners’ staff and the Ombudsman tend to be productive and non-confrontational; whereas, the dynamics of the legislative process may naturally cause conflict among the elected officials with some frequency.

Innovations

In either Ombudsman model, we have been able to bring about improvements to public policy. This could be as simple as changing the methods in which the City resolves damage claims, to impacting the criteria and standards for judging whether employees in the Municipality have a conflict of interest in terms of protecting the public trust. In my capacity as Ombudsman for Portland, we have taken the opportunity to explore ways in which the City can develop more collaborative ways to resolve conflicts. The City operates a Neighborhood Mediation Center which we use frequently to help resolve conflicts between one citizen and another, or between a business and a citizen group. The Ombudsman has brought parties of more complex conflicts together along with an impartial mediator in order to reach a resolution. This year, the Ombudsman initiated the development and implementation of a dispute resolution system within the government, which we hope will be a model for others to follow. This first system provides citizens an opportunity to use mediation to address concerns about our police officers.

The Police-Citizen Mediation Program was initiated to provide citizens with complaints or concerns regarding the actions of city police officers, the option of entering into mediation with the police officer instead of utilizing the existing internal police investigation system. Statistics indicate that only 8% of the complaints filed through the internal investigation system are substantiated. The majority of the remaining cases are either determined to be unfounded or unsubstantiated. This often leaves citizens less than satisfied that their concerns were really listened to, and cynical about the City’s internal investigation process.

A committee was established to explore how mediation could be used to resolve these types of disputes. The process would provide an alternative to the internal investigation process which carries the potential for disciplinary action against the officer. The committee was made up of the Ombudsman, the Police Lieutenant in charge of the Internal Investigations Division, the heads of the two major police unions, and representatives from the City’s Neighborhood Mediation Center. Meetings occurred once a month for nearly a year and often included individuals from outside of the committee to provide particular expertise.

In planning how the process would work, a number of obstacles were anticipated and solutions sought. The most critical problem was how to proceed should the mediation of a case fail. Through discussions, it became clear that there would be little incentive for a police officer to enter into mediation if the citizen could subsequently request an internal investigation with the expectation of seeking disciplinary action. Some citizens argued that the internal investigation option should be preserved, since without it a citizen dissatisfied with the outcome of mediation would be limited to the costly alternative of seeking court action.

The committee was able to reach consensus and made the following decisions:

~ The mediation process is entirely voluntary and can be declined by either the citizen or the officer; both will be fully informed of the consequences of accepting mediation.

~ Should mediation fail, the citizen may not re-enter the complaint process and seek disciplinary action against a police officer through the internal investigation process. Although the citizen maintains the right to take the case to court, they cannot by signed agreement, use information obtained through mediation.

~ No disciplinary action will be taken against an officer as a result of mediation.

~ If, because of the severity of the complaint or because of policy implications, it is found necessary to preserve the option of disciplinary action, the head of the Internal Investigations Division, acting on the authority of the Police Chief, can decline mediation.

~ No written agreements will result from the mediation. The most important records to be maintained are the evaluations completed by the participants at the conclusion of the mediation. These evaluations will be critical in the evaluation process to determine how the program should be refined or altered in the future.

Citizens considering mediation are advised that this option is an alternative to seeking a “pound of flesh” from an officer through internal discipline. It offers an opportunity to discuss their feelings and concerns with the officer face to face, in a non-confrontational setting, in the hope that both parties will gain a better understanding of each other’s perspectives and interests. Many people with complaints about police officers simply want an opportunity to be heard. It is our expectation that the mediation program will have a positive influence on improving an officer’s behavior by providing an opportunity for resolution through communication rather than disciplinary action. Several cases have already been successfully completed through the mediation program.

The public may question the independence of an executive Ombudsman working for the Mayor, who is also the Commissioner of the Police Bureau. Our Office can, however, establish a reputation of being fair and impartial. The creation of this dispute resolution system is a key example of fairness in action.

This office will continue to explore new opportunities for implementing innovative dispute resolution systems within our government. Given the high degree of conflict that is inherent within government, the Ombudsman can provide leadership by assisting our bureaus in implementing these new systems so as to realize the benefits that result from resolving conflicts more productively. It is certainly in the public interest to do so.

Summary

Within the City of Portland, there are a number of different refinements to the Ombudsman concept that could occur to allow the service to mature and gain a place of permanence. Just how that will occur is uncertain, however, I am expecting that it will. There are a number of successful variations of how to provide local government municipalities with Ombudsman services. Other Ombudsman offices have begun under the executive model and were later transformed to the legislative model. There are municipal governments who receive ombudsman services from their state, province, territory or commonwealth. Some municipalities have contracted with higher levels of government for Ombudsman services. While we share the principals of fairness, efficiency and equity in the provision of public services, there is no one fixed model to which an Ombudsman office must conform in order to serve its constituents.

I have had the opportunity to experience two very different Ombudsman models, and have had the good fortune to learn about a wide variety of other Ombudsman offices through the support of the International Ombudsman Institute. I would offer that given the vast diversity among governments around the world, we promote what has been collectively determined to be the essential elements for an effective and fair Ombudsman model, namely, those elements associated with the Legislative model. Additionally, we should honor and support those variations of the Ombudsman – such as the Executive model – which utilize as many of the essential elements that are deemed possible and appropriate by the people within those jurisdictions who will be making the noble commitment to create and maintain an Office of the Ombudsman to help serve justice and equality to their citizens.

* Presented at the International Conference on the Ombudsman Concept, September 23, 1994 – Taipei, Taiwan, R.O.C.
**Formerly known as the United States Association of Ombudsmen (USAO)