NATIONAL CONFERENCE OF STATE LEGISLATURES
1999 LEADERSHIP STAFF ANNUAL TRAINING SEMINAR

September 10, 1999
Hotel Monteleone
New Orleans, Louisiana

THE OMBUDSMAN

Aloha! Thank you for allowing me to speak to you today. I am sure that some of you know what an Ombudsman is, but I am guessing that some of you don’t. What I’d like to do today is tell you a little about what an Ombudsman is and what it is not, and then talk about how having an Ombudsman in your state can benefit you, the legislators you serve and the constituents they represent.

You may be wondering why I am part of this year’s program. As some of you know, I was previously a member of this section, and served on your Executive Committee for two years, from 1996 to 1998, when I resigned to take my current position. Previous to my appointment as Ombudsman, I worked for the Hawaii State House of Representatives for 12 years, including four years as the Chief Clerk for the House Committee on Finance, and my last six years as the Chief of Staff to the Speaker of the House.

During my years as Chief of Staff, I often received complaints of some action or non-action by a state agency or employee. Some of these complaints were from my boss’ constituents; many were from people who lived in some other member’s district. Many of the complaints were easy to resolve. A simple telephone call or two to the head of the agency involved would do it. Other complaints took a little more effort and follow-up, but still were relatively easy to handle. Then there were those complaints that dealt with politically sensitive matters that my boss did not want to get involved with; or required access to confidential files of an agency, which we could not get; or were so complex that I lacked the time or resources to adequately address them. I am sure that most of you, if not all of you, have had to deal with complaints like these.

I found that having a state Ombudsman to whom I could forward these complaints was of great benefit to me, and to my boss, as well. I wondered why none of my colleagues, in particular other Chiefs of Staff with whom I met with annually in forums such as this conference and the National Speakers Conference, had mentioned this resource to me. I found out when I took this office that they probably didn’t know about this resource, because there are only five state Ombudsman offices in the nation -Alaska, Arizona, Hawaii, Iowa, and Nebraska.

So why did Hawaii create an Ombudsman’s Office? When the Hawaii Legislature created my office, it made certain assumptions as to why the office was necessary. Those assumptions were:

(1) That as our society became more complex and pluralistic in nature, more general laws would be required, impacting an increasing number of people;

(2) That those general laws would grant broader discretion to public administrators;

(3) That broader administrative discretion would increase the likelihood of erroneous, inequitable, unresponsive, or even illegal administrative decisions in the application of the laws or rules and regulations;

(4) That each of the traditional modes of resolving individual complaints about administrative decisions, such as reconsideration by the agency making the decision, appeals through the administrative agencies and/or to the courts, or influence exerted by influential friends, had its own shortcomings; and

(5) That therefore, an independent and impartial complaint-resolution mechanism was needed to supplement, but not supplant, the traditional means to seek redress.

These are no longer assumptions in Hawaii; they are reality, and the same may apply to your state, also.

So what is an Ombudsman? Ombudsman is a Swedish word, which literally translated means “representative” or “agent” and is gender neutral. The first Ombudsman, created in Sweden in 1809, was elected by the Swedish Parliament to control the activities of and to prevent abuses by public officials. Since that time, the Ombudsman institution has spread around the world at the national, state or provincial, and local levels.
In its classical form, certain characteristics make the Ombudsman unique among complaint-handling agencies. As envisioned, the Ombudsman is an independent, nonpartisan officer of the legislative branch. This enables the Ombudsman to be independent of the executive agencies under his or her jurisdiction and identifies the Ombudsman’s investigative role as an extension of the power of legislative oversight.

Fundamentally, the only real power the Ombudsman has is the power to investigate. The Ombudsman may inspect agency premises and subpoena testimony and documents as necessary to conduct an investigation.

At the conclusion of an investigation, the Ombudsman may make findings and recommendations for corrective action, as appropriate. However, the Ombudsman has no power to enforce these recommendations or to compel an agency to take any corrective action, and instead, must rely on reasoned persuasion. Therefore, the findings, conclusions, and recommendations the Ombudsman makes must be fair and reasonable, firmly grounded in fact, administratively sound, and in accordance with law. It is only when these conditions are met that the Ombudsman’s recommendations can be effective and persuasive. The stature of the office thus depends on the objectivity and high professional standards of its work.

It is important to understand that an Ombudsman is not an advocate for the complainant or the agencies that the Ombudsman has jurisdiction over. An Ombudsman is a neutral, independent intermediary between the complainant and the agency, who investigates complaints and objectively determines if an agency acted in a mistaken, unfair, arbitrary or illegal manner. If an Ombudsman is an advocate, then it is an advocate for good government.

It is also important to understand that not all Ombudsmen are created equal. My office was established in line with the classical model. That is, we are an independent legislative agency with general jurisdiction over all executive administrative agencies at the state and county levels. But as the Ombudsman institution has spread, it has changed and adapted to meet local conditions.

Some jurisdictions have established classical-style Ombudsmen at the local governmental level, while others have created Ombudsmen or Ombudsmen-like officials who specialize in specific areas, such as corrections, long-term care, education, and so on. Many of these officials are established in the executive branch and are not Ombudsmen in the classical sense because they lack the formal independence from the executive agencies under their jurisdiction. However, they are generally considered as Ombudsmen if they are able to function autonomously. The key difference between an Ombudsman and an executive complaint officer is the degree of independence and neutrality that the official possesses.

In the private sector, a number of companies have also created Ombudsmen. Many of these officers lack the autonomy of a classical Ombudsman and many act more as advocates rather than impartial investigators.

In 1969, the American Bar Association, recognizing the value of the Ombudsman institution, identified twelve essential characteristics which every statute or ordinance establishing an Ombudsman should contain. These essential characteristics are:

(1) Authority to criticize all agencies, officials, and public employees except courts and their personnel, legislative bodies and their personnel, and the chief executive and his or her personal staff;

(2) Independence from control by any other officer, except for the Ombudsman’s 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 or her own assistants and to delegate work to them, without the restraints of civil service and classifications acts;

(7) Freedom of the Ombudsman to investigate any act or failure to act by any agency, official, or public employee;

(8) Access to all public records that the Ombudsman finds 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; and

(12) Immunity of the Ombudsman and the Ombudsman’s staff from civil liability on account of official action.

In 1997, the United States Ombudsman Association developed a Model Ombudsman Act, which incorporates these essential elements. Copies of the Model Act are on your tables. We also have a web site, at www.usombudsman.org, from which you can access the Model Act as well as learn more about what a public sector Ombudsman is. I would like to strongly encourage you to structure any legislation to establish an Ombudsman in your state, whether it is a general jurisdiction office like mine or one with limited jurisdiction, to follow the Model Act as closely as possible.

Now that you have a better understanding of what an Ombudsman is, you may be wondering what some of the benefits are that the public may derive from an Ombudsman’s Office.

First, the Ombudsman equalizes the power of the complainant with that of the administrative agency.

Second, investigation and evaluation of the complaint are services which are offered without direct cost to the complainant and with very little expenditure of the complainant’s time.

Third, the complainant is assured that his or her complaint will be objectively and impartially reviewed by a third party.

And, fourth, if the complaint is justified, the complainant receives the assistance of the Ombudsman in resolving the complaint; and if unjustified, the complainant receives an explanation why the administrator could not rule in the complainant’s favor.

We had a case where the owner of a stolen moped was notified that his moped had been recovered but it could not be returned to him because the thief had defaced the serial number.

Under the law, it was illegal to deface a moped serial number. The law also made it illegal for someone to possess a moped, a moped motor, or any moped part knowing that the serial or identification number had been changed, altered, erased, or mutilated.

This law made sense as a tool to control the illegal trafficking of stolen mopeds and moped parts.

Based on the law, the moped was scheduled for destruction. But, to us, the destruction of our complainant’s moped would have been adding insult to injury. Luckily, after we called the problem to the attention of the Department of Finance of the City and County of Honolulu, it made the very reasonable and common sense decision to put a new identification decal on the moped and return it to the owner.

We recommended to the Legislature an amendment to address this problem, to allow an owner to restore the original number of a defaced moped serial number upon written authorization from the Director of Finance. A similar provision already existed for motor vehicles and bicycles. The amendment passed and moped owners are now afforded the same statutory treatment as owners of motor vehicles and bicycles.

Administrators also benefit from an Ombudsman’s Office in the following ways:

First, the Ombudsman substantiates the decision of the administrator when he or she is right and protects the administrator from unfounded or unjustified criticism.

Second, the Ombudsman assists administrators in identifying problem areas within their administration.

And, third, the Ombudsman assists administrators in finding an appropriate solution to complaints which are deemed justified.

Although a complainant’s individual concern may not be remedied, a complaint can sometimes result in an improvement in a government function.

A man complained about the City and County of Honolulu’s Driver Licensing Division’s interpretation of a new State driver licensing law that became effective on July 1, 1997. The new law stated, in part:

The examiner of drivers shall not examine any applicant for a driver’s license who is fifteen through seventeen years of age unless the applicant holds a valid instruction permit for a period of no fewer than ninety days.

The complainant’s 15-year-old son held a permit that expired after 180 days, while the family was on a trip in June of 1997. When he returned and obtained another permit shortly after July 1, 1997, the Driver Licensing Division informed him that he would have to hold that permit for 90 days before he would be allowed to take the road test for a license. The complainant contended that his son met the intent of the statute by having held a permit for 180 days and should not be required to hold his new permit for 90 additional days before taking the road test.

The Driver Licensing Division informed us that had the original permit been renewed before it expired, the renewed permit would be considered an extension of the original permit and the complainant’s son would not be required to hold the extended permit for an additional 90 days before taking the road test. However, since the original permit expired, he was considered to have obtained a new permit and would be required to hold it for 90 days before taking the road test.

We surveyed the Driver Licensing Divisions of the other three counties and learned that each agreed with the City and County of Honolulu’s interpretation. However, one County reported having already received several complaints about that interpretation and all four counties felt that an opinion from the Attorney General would be helpful to clarify the law.

We raised the issue with the State Department of Transportation, which oversees driver licensing throughout the State. The Department of Transportation agreed with the counties’ interpretation of the law, but at our request consulted the Attorney General on the matter.

Upon review, the Attorney General opined that the counties were correctly interpreting the law. The Department of Transportation disseminated the Attorney General’s opinion to the four counties.

We advised the complainant that although his complaint was not resolved in his favor, the dissemination of the Attorney General’s opinion to all four counties would ensure the uniform application of the law within the State and would assist the counties in providing an explanation to those affected by the law.

In addition to complainants and administrators, the general public also receives some benefit from an Ombudsman. These benefits are as follows:

First, centralizing the complaint function in the office gives the office an opportunity to discover patterns of administrative malfunctioning or frequent problem areas which need to be corrected.

Second, the presence of the office encourages administrators to be more responsive to the public and to develop good internal grievance mechanisms to handle public complaints.

And, third, the office is able to identify for the legislature statutes which, when applied, may be inequitable and thus may need to be reexamined and amended.

We had a case where four persons with out-of-state drivers’ licenses, who obtained Hawaii licenses for the first time, complained about the expiration dates of their Hawaii licenses.

Two of the complainants were over 65 years of age, so their Hawaii licenses would expire on their second birthday after the date of issuance of the licenses. In each case, the license would be valid for one year and one week because the license was issued a week before each licensee’s birthday.

The other two complainants were between 25 and 65 years of age, so their Hawaii licenses would expire on their fourth birthday after the date of issuance of the licenses. In each case, the license would be valid for a little more than three years because the license was issued just prior to each licensee’s birthday.

In our investigation, we found that all four counties determined the expiration date of a driver’s license in accordance with the law, which required the expiration of a license on the licensee’s second or fourth birthday after the date of issuance, rather than two or four years after the date of issuance. Since the statutory language made the expiration date of the license dependent on a licensee’s birthday in relation to the date of issuance, an original Hawaii license issued on a date other than the licensee’s birthday would expire in less than two or four years from the date of issuance, as in the complainants’ cases.

In our research, however, we found legislative history suggesting that the Legislature intended that licenses be valid for two or four years.

After we informed the Department of Transportation of the legislative history, it proposed statutory amendments to the Legislature, and the law was amended to provide that original drivers’ licenses would be valid for a full two or four years.

So having an Ombudsman benefits individual complainants, administrators, and the general public, but what does this mean to you, as leadership staff, and to your bosses? There are a number of benefits in addition to having someone else to refer your complainants to. Clearly, the Ombudsman is an extension of the legislature’s responsibility to provide constituent services. This may trouble some legislators, particularly those who want to be the one-stop problem solver for anyone who calls his or her office. Therefore, it is important to understand that the Ombudsman is another tool that complements and does not take away a legislator’s ability to assist his or her constituents.

The Ombudsman also serves to improve legislative oversight of the agencies under its jurisdiction. Properly structured, the Ombudsman has greater access to agency records than a legislator might have. I now have access to child support data, to prisoner and parolee records, to police department internal affairs investigative files, and many other areas that are off limits to even legislators. In addition, because we deal with these complaints on a daily basis, we have a better view of problem areas and the ability to recommend systemic changes to the legislature that can lead to improved public services.

Finally, the presence of an Ombudsman provides each constituent with a cost free alternative to seek redress. It makes them feel connected again to their government. And I believe this results in them having greater confidence in government.

To summarize, an Ombudsman, as originally envisioned, is an independent, nonpartisan officer of the legislature, who receives and investigates specific complaints from the public about administrative injustice or maladministration and who has the power to criticize and publicize, but not reverse, administrative decisions. An Ombudsman does not replace, but rather supplements, the traditional modes of resolving differences between citizens and administrators. An Ombudsman is an additional means by which an individual may have an adverse administrative decision objectively reviewed without formality and without an undue commitment of time and finances. Finally, an Ombudsman may bring about changes only by recommendation, persuasion, or publicity.

Thus, an Ombudsman is not a lawgiver or a social reformer, nor a knight in shining armor who challenges and defeats the administrative dragon at every turn. Rather, an Ombudsman is a knowledgeable human being who carefully investigates and evaluates the merits of complaints in the focused light of what the law requires. An Ombudsman determines whether a complaint is justified or unjustified by measuring administrative performance against the standards of the law–the statutory law; the decisional law of the courts; the rules, regulations, practices and procedures of the agency involved; and the principles of equity and justice. If the Ombudsman finds that the complaint is justified or has merit, it is the Ombudsman’s job to persuade the administrator to change his or her decision, and if the administrator refuses, to publicize the case. If the Ombudsman finds that the complaint is not justified or does not have merit, the Ombudsman explains to the complainant why the administrator cannot rule in the complainant’s favor.

An Ombudsman may not be necessary for the influential or powerful, but is necessary as an alternate, or a final, recourse for those individual citizens who do not have powerful friends to intervene on their behalf, or who do not have sufficient funds or time to contest an administrative decision, or who do not have sufficient knowledge about the administrative system to cope with it. To that large majority of citizens, an Ombudsman is necessary, because the Ombudsman equalizes the power of each individual complainant with that of the administrative system when he or she investigates and evaluates specific complaints.

A government which is responsive and responsible must be responsive and responsible to the individuals in our society. One way that government can be responsive and responsible to the individuals in our society is for government to provide its individual citizens with an informal, inexpensive, and efficient mechanism whereby their individual complaints against administrative decisions can be thoroughly investigated, researched and evaluated against the requirements of the law, and that, in short, is the task of the Ombudsman, and why I feel every state should have one.

This paper was presented by Hawaii State Ombudsman Robin Matsunaga at the National Conference of State Legislatures 1999 Leadership Staff Annual Training Seminar in New Orleans, Louisiana, on September 10, 1999.

Robin K. Matsunaga
Ombudsman
State of Hawaii, Office of the Ombudsman
465 S. King Street, 4th Floor
Honolulu, HI 96813
808-587-0770 Fax 808-587-0773
robin.matsunaga@aloha.net