Administrative Conference of the United States

A REAPPRAISAL – THE NATURE AND VALUE OF OMBUDSMEN IN FEDERAL AGENCIES

PART 2: RESEARCH REPORT

Final Report: November 14, 2016

Carole S. Houk, J.D., LMM Mary P. Rowe, Ph.D. Deborah A. Katz, J.D. Neil H. Katz, Ph.D. Lauren Marx, M.S. Timothy Hedeen, Ph.D.

Carole Houk International, LLC dba chiResolutions, LLC

Contract No. ACUS150240

This report was prepared for the consideration of the Administrative Conference of the United States. The opinions, views and recommendation expressed are those of the author(s) and do not necessarily reflect those of the members of the Conference or its committees, except where formal recommendations of the Conference are cited.

Final Report to ACUS for Conference Consideration (11/2016)

Table of Contents 1.0 Research Phase 1 ...... 3 1.1 Introduction...... 3 1.1.1 The Research Team ...... 6 1.1.2 The Report ...... 7 1.2 Key Terms and Definitions ...... 10 1.2.1 List of Acronyms and Abbreviations ...... 11 1.3 Report Context and Review of the Literature ...... 12 1.3.1 Federal Ombuds: Formation and Evolution ...... 12 1.3.2 Federal Ombuds: Functions, Issues, and Value ...... 20 1.3.3 Emergence of Professional – Development of Standards and Practices . 21 1.3.4 Comparison of the Primary Sets of Professional Standards ...... 24 1.3.5 Informed Rationale for the Current Research...... 38 1.4 Federal Ombuds Taxonomy for this Project ...... 46 1.5 Introduction to Survey: Design, Distribution, and Collection ...... 51 1.6 Quantitative Survey Summary Findings ...... 61 1.7 Qualitative Survey Summary Findings: Thematic Analysis ...... 73 2.0 Research Phase 2 ...... 80 2.1 Introduction: Showcasing Ombuds Programs and Practices ...... 80 2.2 Case Studies ...... 84 2.2.1 Case: Consumer Financial Protection Bureau Ombudsman’s Office ...... 84 2.2.2 Case: Department of Energy Office of the Ombudsman ...... 105 2.2.3 Case: Department of Interior’s Organizational Ombudsman ...... 122 2.2.4 Case: National Taxpayer Advocate ...... 141 2.3 Profiles: ...... 164 2.3.1 Introduction to the Profiles ...... 164 2.3.2 Profile: The Long Term Care Ombudsman Program – Three Case Studies ...... 166 2.3.3 Profile: The Navy Family Ombudsman Program ...... 207 2.3.4 Profile: The Coalition of Federal Ombudsman ...... 226 2.4 Summary of Insights and Promising Best Practices ...... 241 2.5 Possibilities for Further Research ...... 251 2.6 Suggested Evaluation Methods for Proposed Recommendation ...... 253 2.7 Ombuds Standards of Practice – Policy Considerations ...... 257 3.0 References ...... 268 4.0 Appendices ...... 280

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1.0 Research Phase 1

1.1 Introduction

Twenty-six years ago, Recommendation 90-2 of the Administrative Conference of the

United States (ACUS) played a pivotal role in encouraging support for the use of ombuds in the federal government and providing guidance for the establishment and operations of federal ombuds offices. In recent years, ombuds offices1 in federal agencies have grown in number, prominence, and diversity of practice (Ginsberg & Kaiser, 2009). This is reflected in the creation and growth of a professional association and several networks, with standards and guidelines for practice, and related legal provisions and requirements. The concurrent development of the field of conflict management, including alternative dispute resolution (ADR), has also impacted ombuds practice as well as the growth of ombuds offices in the federal government.

Federal ombuds are generally highly placed agency employees or offices that operate independently of line and staff management structures to provide objective, impartial, and confidential assistance resolving complaints and conflicts involving that federal entity. More specifically, ombuds serve as complaint-handlers, dispute resolvers, information resources, communication channels, and as resources who help improve the functioning of their agencies by identifying patterns and trends, surfacing new problems and issues, and recommending changes

(Rowe, 2010; American Bar Association [ABA], 2004; Meltzer, 1998).

Professionals and scholars have noted that the rapid growth of, and increasing reliance on, federal ombuds has resulted in a wide a range of ombuds programs and practices in federal

1 This report uses the term ombuds office interchangeably with ombuds program, ombuds, ombudsmen, ombudsperson, and ombudsman to include individuals and offices that serve an ombuds function within a federal entity. If we are quoting someone, we will employ the term they used.

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agencies (Ginsberg & Kaiser, 2009; Pou, 2011). Among them are Gadlin and Levine (2008), who stated:

Federal ombudsmen are as variable as the agencies they serve… Adapting

ombuds programs to the diverse cultures and organizational missions of different

federal agencies has resulted in tremendous inconsistencies in how agencies

define and structure the role of ombudsman, how ombudsman officers interpret

their role, and how the ombudsman function is viewed and treated by agency

leadership. (p.20)

Differences in ombuds’ offices and activities may also reflect the unique set of circumstances associated with their establishment, their jurisdictions, the types of constituents and issues they address, the scope of their activities, their caseloads, resources available to them, educational background and training, and approaches to complaint and conflict management

(Ginsberg & Kaiser, 2009).

However, federal ombuds also share common ground. Many adhere to similar standards of practice such as independence, impartiality or neutrality, and confidentiality established by professional associations such as the American Bar Association (ABA), the International

Ombudsman Association (IOA), and the United States Ombudsman Association (USOA). Most also have the ability to bring systemic issues to management’s attention and work with other agency offices in providing assistance to the constituents they serve (U.S. Government

Accountability Office [GAO], 2001). In addition, many share common goals and values of supporting administrative fairness, accountability and equity (Rowe & Gottehrer, 1997).

Despite the recent proliferation of federal ombuds, little comprehensive information is available about their placement, role, and activities throughout the federal government.

Comparative analyses of ombuds practice across federal ombuds offices are even sparser.

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Fundamental questions remain about the current shape and functions of federal ombuds practice, including:

● Which federal agencies currently make use of ombudsmen?

● How do ombuds define their role and function?

● What is the scope of their activities?

● What value do they add to their agencies and how do they assess effectiveness and impact?

● What are promising best practices for the establishment, , and operation of federal ombuds offices?

● Under what circumstances may the establishment or expanded use of ombuds benefit agencies?

● What statutory and other legal parameters affect federal agency ombuds practice, including issues with respect to confidentiality and recordkeeping? (Administrative Conference of the United States [ACUS], “Request for Proposals,” 2015)

Responding to this confusion, inconsistency and hastily expanding ombuds landscape in the federal sector and the lack of basic knowledge of who they are, what they do and why they do it, ACUS issued a Request for Proposals (RFP) in April, 2015, seeking “consultant (s) to undertake a research project to study procedures and best practices related to the use of ombudsmen in federal agencies” (p.1). ACUS believed that the 25th anniversary of

Recommendation 90-2 provided a valuable opportunity to reevaluate the recommendation and examine the effectiveness and value of agency ombuds. More specifically, the RFP called for the study to begin answering the fundamental questions listed above.

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1.1.1 The Research Team

chiResolutions, LLC (CHI) convened a uniquely qualified team2 to conduct this research project. The team is comprised of leading conflict management professionals who have decades of experience in the design, implementation and evaluation of federal and private-sector ombuds offices; expertise in the legal and policy contexts of federal conflict management programs; content knowledge and academic scholarship in ombuds and conflict management fields; and experience with comparative assessments and applied research methodology in conflict management.

The CHI Research Team (the Team) has a complementary blend of academic credentials and hands-on, professional experience; is a mix of insider and outsider perspectives on federal ombuds work; and offers an interdisciplinary approach that includes legal, social psychological, economic, conflict management, political science, and business perspectives. Critically, the team has a long professional involvement with both federal and private sector ombuds, and is familiar with the challenges and economic constraints now faced by federal agencies, programs, and employees, including ombuds.

Additionally, the Research Team has been supported by a group of twenty law school, masters, and doctoral students from Harvard Law School, Nova Southeastern University,

William and Mary Law School, Hamline University School of Law, American University

Washington College of Law, New York University School of Law, University of Richmond

School of Law, University of Baltimore and Kennesaw State University.

2 See CHI Research Team bios in Appendix A.

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1.1.2 The Report

This Report outlines a mixed method research project to examine the aforementioned questions and provides a comparative analysis of federal ombuds offices. The study utilizes a multi-stage approach, which includes four distinct and complementary elements: 1) a literature review and survey methodology (online surveys, interviews, and collection of program materials) across all federal ombuds offices; 2) a case study methodology to highlight promising practices; 3) a standards of practice policy discussion and a legal analysis relevant to the creation and operation of federal ombuds offices, and 4) recommendations offered both by surveyed participants and by the Research Team. The study is designed to help differentiate existing federal ombuds programs and practice, identify consistencies across ombuds offices, develop a framework for comparative evaluation, and identify promising practices. The results will provide an empirical basis for examining the shape and development of federal ombudsmen since ACUS’ Recommendation 90-2, and will inform the development of a new recommendation contained herein.

The comparative analysis framework of this research examines similarities and differences across federal ombuds offices. Differentiating program approaches and mapping the variations in current ombuds’ practice can provide federal agencies and ombuds a better understanding of the range and options of ombuds practice. This can enhance the appropriate use of existing ombuds offices and encourage the development of more informed efforts.

Identifying competing or contradictory assumptions and practices is also useful in testing the relative effectiveness of different approaches or in exploring the conditions under which each may be most useful. Recognizing differences (and learning of possible innovations) can encourage reflective practice among ombuds as well, which can result in more thoughtful and deliberate approaches.

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At the same time, identifying consistency and common ground among ombuds’ programs is essential for providing clearer definitions and boundaries of practice, establishing core competencies, and identifying criteria for comparative evaluation across programs.

Consistencies in practice can promote better accountability, more effective practice, and greater legitimacy and credibility of ombuds offices (Brubaker, Noble, Fincher, Park, & Press, 2014), and thereby strengthen and support professionalism of the field.

This research builds upon, expands, and updates previous research on federal ombudsmen. For example, Leah Meltzer’s (1998) research on Federal Workplace Ombuds and the GAO’s (2001) report on Human Capital both used case study methodology to examine workplace ombuds offices that focus on assisting employees within their federal agency to resolve work-related concerns. Anderson and Stockton’s (1990) study of The Ombudsman in

Federal Agencies, which served as the research basis for ACUS Recommendation 90-2, as well as Ginsberg and Kaiser’s (2009) broader study of Complaint Handling, Ombudsmen, and

Advocacy Offices for the Congressional Research Service both focused on the work of ombuds offices that handle complaints and concerns about their federal agency from the public or other constituents outside the agency. Jeffrey Lubbers’ (2003) Report on Independent Advocacy

Agencies within Agencies highlighted an innovative category of “advocate” ombuds that have

“some degree of independence from the agency that houses them” (p. iii). Our report expands the scope of research to include a full range of current practice by persons with the title of ombudsman—including the well-recognized distinctions of ombuds who focus internally or externally—as well as new permutations of ombuds that were created to meet the unique needs of the federal government. It also expands the research design to include both survey methodology that provides a descriptive overview of current programs, and a complementary

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case study and profile approach that adds detail and evaluative dimensions. Finally, this report offers updated information on the growing and changing role of ombuds in federal agencies.

The final result will be a review of ombuds practices within the federal government along with detailed portraits of several agencies, followed by conclusions and recommendations—all with the intent to sketch the landscape of the federal ombuds and provide an evidence-based platform to help improve practice, inform policy, build theory, and suggest future research on ombuds programs.

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1.2 Key Terms and Definitions

Ombuds, Ombudsperson, Ombudsman, Ombudsmen – These terms are used interchangeably.

Federal ombuds are agency employees (or occasionally contractors) who provide

assistance in managing complaints and conflicts involving that federal entity. More

specifically, ombuds serve, inter alia, as complaint-handlers, dispute resolvers,

information resources, communication channels, and as resources who help improve the

functioning of their agencies by identifying patterns and trends, surfacing new problems

and issues, and recommending changes.

Constituents – Those people who reasonably might contact the ombudsman office in a given

year; the broader universe of those whom ombuds are expected to serve on a regular

basis.

Visitor/Complainant – For the purposes of this study, a visitor is an individual, group of

individuals, or organization that contacts the ombuds office with an issue. In some

practices, a visitor might be called an inquirer or complainant.

Responder – A person whose behavior is the subject of an issue or complaint.

Case – For the purposes of this study, a case occurs when a visitor presents a new problem, issue

or set of issues, to the ombuds that results in a discussion or action where the ombuds

helps to develop, discuss, offer options or otherwise acts on the concern. A case may or

may not require multiple appointments with the visitor and/ or other parties, and may or

may not involve more than one issue.

Agency – The department, agency, bureau, or other subdivision, that defines the unit of

government covered by the office’s ombudsman practice.

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1.2.1 List of Acronyms and Abbreviations

ABA American Bar Association

ACUS Administrative Conference of the United States (also called “the Conference”)

ADR Alternative Dispute Resolution

ADRA Administrative Dispute Resolution Act

CHI Carole Houk International

COFO Coalition of Federal Ombudsman

CRS Congressional Research Service

DOD Department of Defense

EEO Equal Employment Opportunity

FAR Federal Acquisition Regulation

FOIA Freedom of Information Act

GAO Government Accountability Office

IADRWG Interagency Alternative Dispute Resolution Working Group

ICD Intelligence Community Directive

ICMS Integrated Conflict Management System

IOA International Ombudsman Association

IRS Internal Revenue Service

ODNI Office of the Director of National Intelligence

OIG Office of Inspector General

OPM Office of Personnel Management

RFP Request for Proposals

TOA The Ombudsman Association

UCOA University and College Ombuds Association

USOA United States Ombudsman Association

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1.3 Report Context and Review of the Literature

If there is merit in the Senger (2000) statement that “the emergence of alternative dispute resolution (ADR) was one of the most significant movements in United States law during the latter half of the 20th century, and has had a profound effect on the way the federal government handles conflict” (as cited in Nabatchi, 2007, p. 646), then it may also be true that the role of the ombuds in the federal sector has been, and will continue to be, an important factor in this development. Though there are many distinctions among ADR practitioners, there is no doubt that the ombuds movement was “swept along by the wave” of the increased attention and credibility earned by ADR since the late 20th century (Rowe & Gadlin, 2014, p.10).3

1.3.1 Federal Ombuds: Formation and Evolution

The word ombuds or ombudsman can be traced back to 11th century Scandinavia, when the term appeared—meaning proxy, attorney, or representative (Clark, 2007; Friedery, 2008).

Centuries later, in 1806, the Swedish legislature created the role of this high level officeholder to assist the King in applying the laws of administration and dealing with citizen complaints—in effect, creating the first modern day ombuds. Following Sweden’s lead, Finland (1919),

Denmark (1955), Norway (1962), and New Zealand (1962) appointed ombuds at the executive level. The concept and role of ombuds then progressed to other countries such as Canada,

Australia, Israel, and England. While the jurisdiction to investigate complaints against

3 Many ombuds in the federal government serve roles and provide functions beyond what may commonly be thought of as ADR processes (for example, negotiation, conciliation, facilitation,