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I N T E R N a T I O N a L O M B U D S M a N a S S O C I a T I Journal of the I n t e r n a t i o n a l O m b u d s m a n A s s o c i a t i o n V O L U M E 2 , N U M B E R 1 , 2 0 0 9 Journal of the International Ombudsman Association Good Intentions Gone Astray: How the ABA Standards Affect Ombudsmen S A R A T H A C K E R ABSTRACT Association (ABA), a voluntary private professional This year celebrates the 200th Anniversary of the association of lawyers, adopted Standards for the first ombudsman. Over the centuries, the role of the Establishment and Operation of Ombuds Offices (the ombudsman has evolved. This article provides a rich “Standards”). The ABA developed these Standards history of the evolution of the various types of with good intentions — to advise and guide ombuds ombuds and a critical analysis of the American Bar on the structure and operation of their offices and to Association Standards for the Establishment and improve public confidence in the integrity of the Operation of Ombuds Offices. ombuds process.4 While many ombuds are not attorneys, historically, the KEY WORDS ABA has been at the forefront of the ombuds move- ment. Ombuds are highly effective in dispute resolu- American Bar Association standards, organiza- tion, a key component of the American legal system. tional ombuds, classical ombuds, legislative ombuds, Ombuds often resolve conflicts in their early stages, executive ombuds, advocate ombuds which could otherwise develop into litigation or more substantial disputes. Therefore, ombuds — whether INTRODUCTION or not they are attorneys — serve a vital role by “Ombudsman” — the word leaves many establishing a process to handle complaints, exploring scratching their heads. Despite the extraordinary underlying facts through informal inquiry or investiga- growth in the profession, many individuals either do tion, and addressing those complaints in a manner not know the term or are confused by the various that best fits the situation.5 As a result, since 1969, the types of ombuds.1 ABA has urged the establishment of ombuds offices in the governmental sector to investigate and critique The dictionary defines an ombudsman as “someone administrative actions.6 More recently, the ABA has who works for a government or large organization undertaken a greater role in the ombuds profession. and deals with the complaints made against it.”2 But By 2001, the ABA had broadened its policies to this description does not begin to encompass the support greater use of ombuds in all areas, including multiple types of ombuds and the broad and diverse academia and the private sector, and created the tasks they undertake. As federal, state and local Standards for the Establishment and Operation of governments, corporations, businesses, universities, Ombuds Offices.7 and non-profit organizations began to use ombuds with regularity in the 1960’s, variations in how they The 2001 Standards categorized the different types of dealt with complaints emerged. For example, some ombudsmen and set forth the basic authorities and ombuds investigate and issue formal reports or essential characteristics by which all ombuds should findings; others offer informal, interest-based dispute operate. In 2004, the ABA revised the Standards to resolution options; and still others advocate for include new provisions that address important legal particular groups. These differences cause public issues, such as confidentiality, notice, and the scope of confusion and spark heated debate in the profession ombuds authority.8 While the ABA Standards do not over who is a “real” ombudsman.3 have the force of law, courts often look to the ABA for guidance on legal and ethical issues.9 Accordingly, the In response to the lack of uniformity and diverging ABA Standards need to be clear and reflect industry roles of ombudsmen, in 2001 the American Bar practices for the various types of ombuds. volume 2, number 1, 2009 65 Journal of the International Ombudsman Association This article examines how the ABA’s good intentions findings to the King and serve as an overseer of to define and legitimize the profession went astray. administrative actions.12 As Sweden moved towards a Part I of this article examines the evolution of the representative democracy, Parliament also wanted a ombuds profession from its origins to the present “watchman” who would monitor, investigate, and categorization by the ABA into four distinct types and report back to Parliament (not the King) on the explores the need for Standards that emphasize the operation of the new government.13 fundamentally different orientations of ombuds. Part In its 1809 Constitution, Sweden instituted the II examines the common essential characteristics of position of the justitieombudsman (justice ombuds- ombuds and explores the need for Standards that man).14 Elected by the legislature, the justice ombuds- describe how different kinds of ombuds approach man was to be “a person of known legal ability and independence, impartiality, and confidentiality outstanding integrity.”15 The purpose of the ombuds- differently. By emphasizing these differences and man was to “ensure the legality of official actions” and creating separate standards for each ombuds cat- protect the public by “investigating complaints of egory, the ABA would add more clarity to a profession official wrongdoing.” If necessary, the ombudsman plagued by public misunderstanding. would prosecute officials who acted unlawfully or Additionally, the ABA Standards should minimize failed to perform their duties properly.16 As the role of confusion by ombuds over important provisions the justice ombudsman evolved, he became more of affecting legal issues, such as confidentiality, notice, a “‘citizen defender,’ concerned with resolving public and the scope of ombuds authority. Part III of this complaints against the public bureaucracy, and less as article examines how these provisions cause confu- a prosecutor of official wrongdoing.”17 Today, Sweden sion and explores the legal and functional implica- has four ombudsmen, each specializing in different tions for ombuds. It also offers recommendations for public fields.18 revising the Standards so that ombuds can function The concept of the ombudsman did not spread with the strong protection of confidentiality, provides quickly. It took more than 100 years before another clear provisions defining what constitutes notice of country followed Sweden’s example and appointed employee acts that may subject an entity to liability, an ombudsman.19 Momentum for instituting ombuds- and describes the scope of ombuds’ authority to assist men began in 1955 when Denmark appointed its first union employees. ombudsman.20 New Zealand and Norway followed in While the ombuds profession is relatively new in 1962 and 1963 and the ombuds movement continued North America, by examining the Standards, I hope to to spread around the world to Guyana, Tanzania, increase knowledge and clarity about the profession Canada, the United Kingdom, Mauritius, Northern and reduce the number of quizzical and confused Ireland, Israel, Fiji, France, Zambia, Papua New Guinea, looks by individuals who ask — “ombudswhat?” In Portugal, Australia, Austria, Trinidad and Tobago, addition, this article speaks to practicing ombuds who Jamaica, The Philippines, Ghana, Ireland, The Nether- may feel threatened by the Standards and their legal lands and Spain.21 While the United States did not implications, and offers recommendations to maintain adopt a federal ombudsman, several states joined the the integrity of the profession. ombuds ranks, starting with Hawaii in 1969, followed by Nebraska, Iowa, New Jersey, Alaska, Kansas, and Florida, as well as several urban areas.22 Some scholars I. EVOLUTION OF THE refer to this surge from the mid 1950s to the 1980s as OMBUDS PROFESSION “ombudsmania” and attribute it to governmental recognition of “the ability of ombudsmen to advance the cause of human rights, to control the public A. ORIGINS OF THE CLASSICAL MODEL — bureaucracy, to remedy individual grievances against AN ADJUDICATORY APPROACH public maladministration, and to draw public atten- Today’s classical ombudsman is based on a tion to administrative maladies in public organiza- 10 model originating in Sweden. In 1713, Swedish King tions.”23 Charles XII appointed a “Chancellor of Justice” to investigate the conduct of administrators who acted In performing these duties, classical ombudsmen took in his name.11 The Chancellor would report his an adjudicatory approach by conducting investiga- volume 2, number 1, 2009 66 Journal of the International Ombudsman Association tions, deposing witnesses, subpoenaing evidence, sumer complaints.31 creating an official record, and issuing findings, The mission of the organizational ombudsman 24 judgments and formal public reports. The mission of is to provide a confidential, neutral and the classical ombudsman reflects this approach: informal process which facilitates fair and The institution’s mission is to generate com- equitable resolutions to concerns that arise in plaints against government administration, to the organization. In performing this mission, use its extensive powers of investigation in the ombudsman serves as an information and performing a post-decision administrative communication resource, upward feedback audit, to form judgments which criticize or channel, advisor, dispute resolution expert and vindicate administrators, and to report publicly change agent.32 its findings and recommendations but not to Mary Rowe, ombudsman for the Massachusetts 25 change administrative
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