S avannah

Law Review VOLUME 4 │ NUMBER 1

Regulating Boss Hogg—Citizen Empowerment and Rural Government Accountability Lexye L. Shockley*

If we believe a thing to be bad, and if we have a right to prevent it, it is our duty to try to prevent it and to damn the consequences.1 —Lord Milner

Abstract This Note proposes a solution to the problem of a private citizen’s lack of power to advance ethics complaints against public officials and employees in rural municipalities. In doing so, it examines the unique position of the small rural town: its lack of resources, potential for conflicts of interest and bias, and the lack of media presence and political pressure. It further discusses issues of standing and evaluates both effective and ineffective methods currently in use, including methods used for incidences of police misconduct. Ultimately, this paper recommends a modified, regional ombudsman 2 program to field,

* Juris Doctor, Savannah Law School. 1 Alfred Milner, Chairman, The House of Lords, The House of Lords and Duty (Nov. 26, 1909), in Lord Milner, The Nation and the Empire 401 (3d impression 1913). 2 The concept of the ombudsman started in Europe with the first public sector ombudsman being appointed in 1809 by the Parliament of Sweden. Since then, other legislative bodies have appointed ombudsmen to field citizen complaints in a wide variety of areas. An ombudsman is defined as: “A public official appointed by the legislature to receive and investigate citizen complaints against administrative acts of government.” See The History of the Public Sector Ombudsman, U.S. Ombudsman Ass’n, http://www.usombudsman.org/about/history-of-the-public-sector-ombudsman/ (last visited July 31, 2016). See Infra Appendix A. In the United States, several offices of the federal government, as well as some state departments offer ombudsman offices to assist citizens in their specific areas of government, however, the federal government and most states lack a comprehensive or

225 Savannah Law Review [Vol. 4:1, 2017] investigate, and ultimately act upon substantiated citizen complaints. An ombudsman program could provide an effective and efficient means for a citizen to have a voice without the influence of local political forces, increasing the public’s trust in government, and holding public officials accountable for their actions.

I. Introduction Local political conflicts and cronyism often undermine or even prevent citizens from advancing complaints within their communities, creating roadblocks to progress through corruption and inaction. Behind these roadblocks are often local officials similar in many ways to the fictionalized prototype county commissioner Boss Hogg. For those unfamiliar with Boss Hogg, the “Balladeer” of Hazzard County introduces him best: Boss Jefferson Davis Hogg was born on the dirt floor of a sharecropper’s shack, and from there, things kinda went downhill. But everybody has a talent, and Boss has a gift of graft. In a dazzling career in Hazzard County ranging from moonshine to political corruption, Boss has been chased by everything from revenuers, to bloodhounds, to irate husbands. And even if the city cops do spot his license, it really don't matter none, ‘cause Boss changes license plates like he does his underwear, which is every time he goes to town. When it comes to basic cunning, ol' Boss was plumb ate up with it.3 Though fictional and over-stated, many of Boss Hogg’s characteristics are quite common. Boss Hogg was a crooked County Commissioner who would sell his own mother down the river to make a buck. In fact, “he [ran] the County, control[ed] the graft, and own[ed] the Sheriff.”4 This dramatized version of a corrupt official involved in a laundry list of criminal endeavors, although exaggerated on all fronts, illustrates the public perception of small-town politics. This perception is unfortunately grounded in the reality that the local political arena has not only historically involved such character flaws in its leaders, but also continues to do so. Lately, there has been an increase in news reports and blogs highlighting rural government corruption.5 In rural communities across our nation, city and county commissioners, mayors, city managers, and city councils are abusing their often unchecked power.6 This power is often augmented by even unified ombudsman program to process and investigate administrative complaints against elected and appointed officials. 3 The Dukes of Hazzard: Daisy’s Song (CBS television broadcast Feb. 2, 1979) (spoken by Waylon Jennings as “the Balladeer”). 4 Id. 5 While there has been an increase in the number of reports in the media regarding local corruption, the majority of these reports involve serious criminal allegations and ongoing issues in communities that have finally been brought to light. The fact remains, however, that in rural areas, the lack of media attention (without serious allegations) continues to stymy the efforts of rural citizens to expose corruption in their towns. 6 In March of 2014, CNN reported that Hampton, Florida, population of just 477, may be one of the most corrupt cities in the United States citing an audit that found 31 state and federal

226 Regulating Boss Hogg not-uncommon problems — such as conflict of interest, favoritism, and bias— that develop a uniqueness once placed into a rural context, opening the door to abuse of power and unethical practices.7 While there is no common definition for “rural,” the second section of this note will discuss the idea of “rural,” and address common perceptions and misconceptions of “rurality.”8 Part III focuses on several types of ethics violations, current ethics laws, and the importance of accountability and public trust in government. Of particular importance in this section is the effect of bias, favoritism, and conflict of interest due to the unique challenges that the rural environment creates in these areas. Part III will apply rurality to the ethical issues discussed and further highlight the uniqueness of rural communities and the roadblocks that many citizens encounter in redressing ethics violations. The fourth and final sections offer solutions. First, in Part IV, I will analyze some ways that communities are addressing ethics complaints currently, in addition to giving a brief overview at traditional adversarial adjudicative approaches for both civil and criminal complaints. These approaches include ethics committees/boards, mediation, civil and criminal lawsuits, and the most extreme, dissolution or revocation of charter. Finally, in section V, I put forth my proposed solution: a regional Ombudsman program meant to effectively and efficiently address complaints while avoiding the pitfalls and influences that effect existing methods.

law violations. Ann O’Neill, Speed Trap City Accused of Corruption, Threatened with Extinction, CNN (Mar. 9, 2014, 9:52 AM), http://www.cnn.com/2014/03/09/us/hampton-florida- corruption/. At the time of the news report, the Mayor of Hampton was in jail for dealing oxycodone, the city had one of the most notorious speed traps in the state, bringing in hundreds of thousands of dollars, and the city was facing losing its charter. Id. In a follow-up story on March 31, CNN reported that the city had been spared based on its agreement to address a long list of concerns, which included accounting for misappropriated funds, dissolving the police force, and holding public City Council meetings at regular hours. Ann O’Neill, City Too Corrupt for Florida is Spared, CNN (Mar. 31 2014, 10:47 AM), http://www.cnn.com/2014/03/29/us/hampton-florida-corruption-survival/. See also Allison Gatlin, 6 Police Officers in Calif. Town Arrested, USA Today (Feb. 26, 2014, 3:39 PM), http://www.usatoday.com/story/news/nation/2014/02/26/police-impound- scheme/5827747 (discussing a situation where six officers in King City, CA, population 13,000, were arrested in an impounding scheme that targeted the poor Latino population, impounding their cars and reselling them when the fees could not be paid. Charges included embezzlement, bribery, and conspiracy, among others. See generally Updated: Southeastern Kentucky Political Corruption; More of a Tradition than a Rarity, The Rural Democrat (Mar. 15, 2008), http://theruraldemocrat.typepad.com/the_rural_democrat/2008/03/ southeastern-ke.html (listing Kentucky public officials accused or convicted of crimes and highlighting political corruption in Kentucky as “[m]ore of a [t]radition than a [r]arity[.]”). While situations such as these may be the exception to the rule, public officials in small towns that act in such a way to draw national media attention to rural corruption perpetuate the public perception that all small-town politicians are corrupt. 7 See infra note 10 8 See infra note 10.

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II. Peaceful Pastures or Country Chasm? Ironically, rural America has become viewed by a growing number of Americans as having a higher quality of life not because of what it has, but rather because of what it does not have!9 —Don A. Dillman The dichotomy suggested by this section title highlights the subjective quality of the term “rural.”10 For some, the term evokes images of tidy, two- story houses set amidst green rolling hills, surrounded by a white picket fences and a big red barn in the back. For others, that image is it a tiny, unkempt roadside strip with a few dilapidated stores and an old man in a rocking chair sitting under one of the awnings. Not surprisingly, there are about as many perceptions of “rurality” as there are people.11 A lack of formal definition seems to corroborate this—just like individuals, nearly every governmental organization defines rural in a different way.12 Some programs use population of 50,000 or fewer to define rural.13 Others, such as the Farmers Home Administration, define rural as up to 10,000 people.14 The United States Census bureau interestingly defines “rural” by excluding it from

9 Don A. Dillman in 101+ Quips, Quotes and Concepts for Sustainable Small Town Development 17 (Allan Hooper Consumers Energy ed., 2007). 10 There are more substantial dichotomies that exist among the perceptions of rurality—the person/place dichotomy as well as the urban/rural dichotomy. On their own, these differences are largely unaddressed by legal scholars, and are more commonly addressed as related to issues of poverty and race. At least one scholar, however, has written extensively on issues specifically related to the uniqueness of rural communities. Debra Lyn Bassett looks at these differences as a type of discrimination. According to Bassett: Rural places often are romanticized as unspoiled, safe, quiet, and beautiful. Rural dwellers, however, often are stereotyped as uneducated, unsophisticated, backward, and sometimes mentally deficient and physically dirty. In other words, rural areas are quaint places to visit, but they are not places with which to be associated as a year-round permanent resident. Debra Lyn Bassett, The Rural Venue, 57 Ala. L. Rev. 941, 947–49 (2006). This perception combined with the national focus on the urban, leads to bias and discrimination against those living in rural areas, affecting those who are already discriminated against—women, minorities, and the poor—even more harshly. This “ruralism” is not limited to sociological interest, but has permeated the legal system in a variety of ways. Additionally, because of lack of interest and overall general urban focus, scholars have largely failed to address many issues regarding rural identity. Id. 11 “Beneath these images, however, there is a grim socioeconomic and legal reality— a reality that relegates rural dwellers to a decidedly second-class status under the law, under government benefits and policies, and, indeed, under all things that truly matter. Our society’s bias is decidedly urban.” Debra Lyn Bassett, Ruralism, 88 Iowa L. Rev. 273, 276 (2003). 12 Debra Lyn Bassett, The Politics of the Rural Vote, 35 Ariz. St. L.J. 743, 749–50 (2003). 13 Id. at 750. 14 Id. at 749.

228 Regulating Boss Hogg their definition of “urban” and “urban cluster” which take into account both population and density. 15 The only apparent commonality among these definitions is that they use some sort of population guideline to determine what “rural” is.16 According to the 2010 Census, 19.3% of the population falls outside of urbanized areas and clusters and are therefore considered rural.17 This classification, however, incorporates 10,809,349 individuals that live in “urban clusters” with under 10,000 people, an additional 3.5% of the population.18 Therefore, people in rural areas of under 10,000 people make up approximately 23% of the population. Urban land, however, comprises less than 5% of all land use in the United States, meaning that over 95% of the land in the United States is owned or controlled by less than 25% of the population, and the other 75%+ of the nation’s population is crowded into larger metropolitan areas. Why does this matter? Sparsely populated areas have fewer available resources and increased delivery cost.19 The rural citizen often lacks access to things that many people take for granted, such as high-speed internet and cellular phone coverage, which is often spotty at best.20 When resources do become available, they are often unaffordable to many rural citizens due to the prevalence of rural poverty. 21 Additionally, because the majority of the population is concentrated in urban areas, this is where the focus of national

15U.S. Census Bureau, 2010 Census Urban and Rural Classification and Urban Area Criteria, US Census Bureau, http://www.census.gov/geo/reference/ua/urban- rural-2010.html (last visited Oct. 20, 2017) [hereinafter 2010 Census]. 16 While population density appears to be the common thread among agencies defining rural, Bassett explains that the true commonality is the notion of isolation. Bassett, supra note 12, at 750 17 2010 Census, supra note 15. 18 Id. 19 Raymond D. Macchia, The Challenges of Providing Legal Aid in Rural Wyoming, 35 Wyo. Law 18, 20 (2012) (noting that rural landscapes, distance from population centers, and problems with roadways are all factors that decrease access and increase delivery problems). 20 Id. 21 The problem of rural poverty is astounding. As Professor Bassett stated: Of all counties with poverty rates above the national level, approximately 84% are rural. Moreover, more than eighty rural counties have poverty rates of more than 30% and twelve of those eighty rural counties have poverty rates above 40%. In fact, counties with “extreme poverty rates” are disproportionately concentrated in rural areas. Poverty rates are highest in the most rural areas, and rural areas have a disproportionately large portion of the poor. Not only is the level of poverty striking in rural areas—of the 250 poorest counties in America, 244 are rural—but poverty becomes more acute in more remote rural areas. Debra Lyn Bassett, Distancing Rural Poverty, 13 Geo. J. on Poverty L. & Pol’y 3, 9–10 (2006). The prevalence of rural poverty combined with the increased delivery costs associated with supplies and services and the urban focus for public funding substantially decrease the political voice of the rural dweller. “[R]ural dwellers lack power and influence not only with respect to their actual numbers and their political representation in terms of congressional representatives and electoral votes, but also with respect to income and political contributions.” Bassett, supra note 12, at 754.

229 Savannah Law Review [Vol. 4:1, 2017] policy often lies – ignoring and rarely understanding the needs of the rural community.22 The lack of resources and focus further isolates the rural lifestyle from the urban centers, leading to generalizations and stereotyping of the rural individuals.23 While many people may stereotype rural areas as idyllic places to visit, the stereotypes of individuals are much less so, leading to an unconscious bias against rural individuals.24 These stereotypes range from rural Americans having a self-reliant, pioneer spirit requiring little intervention,25 to simple and uneducated agrarians.26 Despite the reputation that rural America may have as wholesome, simple, land-lovers, defining rural is not as simple as a lifestyle generalization or a population. The term “rural” is dichotomous within itself. Rural places may provide more privacy like many assume, or they may provide less because of the closeness of community. Rural communities may be safer and less given to criminal activity, or they may be more vulnerable to it because of their isolation. The inhabitants may be self-sufficient and pioneering, or they may be in more need of protection due to their needs and rights being underrepresented in policy.27 The truth is, “rurality” is a combination of all of those things. Every rural community is unique and individual. As one scholar noted, “[w]hen you have seen one rural community, you have seen one rural community. What rural people have in common is low population density[.]”28 For the purpose of this Note, I will focus primarily on communities with a population of 10,000 or less,29 however, outside of gathering statistics population is largely unimportant as the focus will be primarily on various lifestyle characteristics associated with ruralness, specifically those characteristics that strongly influence favoritism, fairness, and conflicts of interest such as community closeness and kinship.30 In

22 See Bassett, supra note 11, at 290 (describing the shift from rural-agrarian to urban political focus due to 19th century industrialization and the resulting population shift beginning in the early 1900s). 23 See Bassett, supra note 10, at 944–48. 24 See id. at 952 (describing how categorization and stereotypes help form and are influenced by unconscious biases). See also Lisa R. Pruitt, Rural Rhetoric, 39 Conn. L. Rev. 159, 168–72 (2006) (looking at an exclusion from urban as a basis for rural stereotypes and bias). 25 MaCherie M. Placide & Casey LaFrance, The County Sheriff in Films: A Portrait of Law Enforcement as a Symbol of Rural America, 16 Int’l J. Police Sci. & Mgmt, 101, 107 (2014) (discussing a 2002 bipartisan survey of 26 members of Congress and their perceptions of rural America). 26 Pruitt, supra note 24. 27 Id. 28 David L. Brown & Louis E. Swanson, Challenges For Rural America in the Twenty-First Century 397 (2004). 29 While this figure will inevitably include some suburban areas in its calculus, it also encompasses smaller, isolated “cities.” These small, incorporated municipalities are isolated enough from larger metropolitan areas to experience many of the same resource issues that other communities experience, and outside of their own city limits remain largely invisible to urban focused policy and people. 30 See Caprice L. Roberts, Remedies, Race & Civil Rights in the Old South, 2 Savannah L. Rev., 73, 94–110 (2015) (describing the inherited empire of Sheriff Tom

230 Regulating Boss Hogg communities exhibiting these characteristics, complaints against officials often fall on deaf ears, and remedies, if any, are limited to whatever the official receiving the complaint deems is appropriate.31

III. Ethics and Accountability Constitutional democracy requires, and Americans expect, that the law should “level [the] playing field”32 in the community by removing unfair advantages gained through the abuse of relationships with those in power within government.33 This impartiality and responsibility should be required by all public officials in order to demonstrate the integrity of the government and gain public trust.34 Furthermore, “[g]overnments have a responsibility to the public to avoid even the appearance of impropriety and to act to reduce the opportunities and incentives for unethical behavior by their officials and employees.”35 Ethics laws are designed to prevent those more susceptible and weak from being harmed by those in power, “not for protecting the immoral

Poppell, who during his thirty-one-year reign encouraged a cycle of fear and gratitude by creating dependency on his “goodwill” and his willingness to be bought). 31 While Professor Roberts primarily addresses racial disparities in her article, we see similar patterns of discrimination in regards to ruralism. Equitable remedies are therefore needed to address the intangible harms caused by ruralism. Roberts notes that “[s]ome of the problems are collective patterns reinforced over time through prejudice or preference for the known . . . [d]isparities in income, housing, education, and related opportunities continue to persit . . . .” Yet despite some progress, “[r]emedies remain elusive. As communities work through struggle, and at times litigation, remedies will aid in the correcting of injustices and ideally in the shifting of longheld misconceptions.” Id. at 107– 08; see generally Bassett, supra note 11. 32 Vincent R. Johnson, Ethics in Government at the Local Level, 36 Seton Hall L. Rev. 715, 723 (2006). 33 Professor Roberts addresses the procedural void in the Supreme Court of the United States, noting that judicial recusal requirements that allow the Justice to determine whether or not his or her own recusal is necessary “undermines the credibility of the court.” Caprice L. Roberts, The Fox Guarding the Henhouse?: Recusal and the Procedural Void in the Court of Last Resort, 57 Rutgers L. Rev. 107, 109 (2004). In her article, Roberts focuses on three cases involving personal friendships, extrajudicial commentary, and kinship that involved potential grounds for recusal of Justice Antonin Scalia, who refused to recuse himself in each case mentioned. See id. Roberts further points out that “the very purpose of the ethical requirements, constitutional protections, and federal judicial disqualification statutes is to ensure that citizens can know that standards and laws with consequences will protect against corruption and unfairness. Id. at 119–20. Additionally, Independence of the judiciary also reflects a need for judges to decide cases without regard for external pressures and influences of citizens or groups. This second strain of judicial independence is known as ‘decisional independence’. . . . Decisional independence dovetails into judicial impartiality because to decide a case impartially is to rule based exclusively upon the law and the merits rather than outside influences. Id. at 133. 34 Deborah L. Markowitz, A Crisis in Confidence: Municipal Officials Under Fire, 16 Vt. L. Rev. 579, 580–81 (1992). 35 Id.

231 Savannah Law Review [Vol. 4:1, 2017] activities of public employees whose actions endanger those people and projects the public has entrusted with them.”36 Rather than preventing conflict, rural local governments inherently create ethical conflicts for their employees and officials due to their structure, making it difficult to be open and impartial in conducting assigned duties.37 This degrades the public trust on the local level amongst a public that is already weary in their outlook of the activities of federal and state governments.38 This opinion demonstrates the vital importance in creating strong ethical policies and having tools available to enforce those policies on the local level. In communities lacking strong ethical standards for public officials, there is a public perception that the officials are not being held accountable for unethical behavior.39 To add insult to injury, recourse for ethical breaches by officials is rarely available to individual citizens.40 Without an opportunity to redress a complaint for ethical breaches, a general distrust of these officials develops not only among the citizens, but also among real estate developers, businesses and even the courts. The lack of power to redress ethics complaints undermines the very purpose of governmental ethics restrictions. Generally, ethics laws serve to protect public trust in government by fostering honesty and integrity within the government.41 The founders of our nation recognized a need for ethical government and that

36 Nonnie L. Shivers, Firing “Immoral” Public Employees: If Article 8 of the European Convention on Human Rights Protects Employee Privacy Rights, Then Why Can’t We?, 21 Ariz. J. Int’l & Comp. L. 621, 626 (2004). 37 Deborah L. Markowitz, A Crisis in Confidence-Local Boards Under Fire, 17 Vt. B.J. & L. Dig. 8 (1991). 38 Markowitz, supra note 34, at 580. 39 Id. 40 Id. Markowtiz notes that “[e]xcept in the most extreme circumstances, a person harmed by an official’s ethical breach has no recourse,” which leads to a “general distrust of municipal officials” by not only the public, but of the courts as well. 41 See Mark Davies, Governmental Ethics Laws: Myths and Mythos, 40 N.Y.L. Sch. L. Rev. 177, 177–78 (1995). Davies addresses the assumption that ethics laws were created to address government functions of “collect[ing] forms, hand[ing] out fines, or publish[ing] rules and opinions,” rather than addressing integrity and honesty in office. He further explains: Two corollaries accompany this assumption. One, the prevention of unethical conduct does far more for integrity in government than the punishment of unethical conduct. It is better to shut the barn door before the horse has bolted. Two, the perception of integrity in government is no less important than the reality of integrity in government. Both are essential because regardless of how honest public officials are in fact, a democratic system of government cannot function properly if the public believes its officials are corrupt. Id. See also, Patricia E. Salkin, Enforcement of Local Ethics Law, Ethical Standards in the Public Sector (2d. ed. 2009) (noting that the primary concern of agents of the public is the public interest, and they must accordingly “faithfully discharge the duties of their offices regardless of personal considerations.”)

232 Regulating Boss Hogg need applies to all levels of government today.42 However, despite efforts to avoid corruption and abuse of power, these abuses are well documented throughout history “and the sentiments of distrust they engender damage the public's perception of government as a whole.”43 Not only is prevention of unethical practices essential to preserve integrity in government, but officials must abstain from even the appearance of unethical behavior that could hamper public trust, as “the perception of integrity in government is no less important than the reality of integrity in government.”44 In one report on ethics reform, a citizen in response to an interview proclaimed that it seems that “at every level of government, many leaders have lost sight of the reason why they're there and of the values that this country was founded on.”45 Another resident said “Ethics in government means that our leaders should be doing the right thing for the people, not for themselves. We want them to do the right thing, not necessarily the popular thing.”46 Several challenges act to impede such trust. Broadly described, the primary issues are: “(1) basic honesty and conformity to law; (2) conflicts of interest; (3) service orientation and procedural fairness;” and (4) objectivity in policy making.47 It is vital that when ethical breaches occur within these categories, those who have been affected, including private citizens, be given the opportunity to have their complaints heard. In turn, it is just as important for the local government official to be given the opportunity to explain their actions to dispel any perceptions of illegal or unethical behavior to protect the public trust in his or her office and the municipal government as a whole.

A. Basic Honesty and Conformity to the Law Simply stated, government officials and employees should not be above the law. Embezzlement, graft, other improper financial gains, as well as falsification of documents and records are among the most commonly recognized corruption crimes in rural governments.48 Although these crimes are often the most recognized, it is the subtle and less obvious related crimes that have the greatest effect on the public’s trust in the government.49 Acts of dishonesty such as

42 Joshua C. Wells, Nevada Commission On Ethics v. Carrigan: The U.S. Supreme Court Weighs In On State Regulation Of Local Ethics Practices, 64 Planning & Envtl. Law No. 2, at 3 (2012). 43 Id. 44 Davies, supra note 41, at 178. 45 Paula A. Franzese & Daniel J. O’Hern, Sr., Restoring the Public Trust: An Agenda for Ethics Reform of State Government and a Proposed Model for New Jersey, 57 Rutgers L. Rev. 1175, 1178 (2005) (addressing the importance of public trust in public officials and the perceptions that the citizenry have about the trust placed in elected and appointed agents for the pubic.) 46 Id. 47 Markowitz, supra note 34, at 597. 48 Id. at 599. 49 Id. Markowitz provides numerous of these “minor” infractions: For example, it is not uncommon for a town’s zoning administrator to “bend” the zoning rules for his friends or relatives, for a town clerk to

233 Savannah Law Review [Vol. 4:1, 2017] performing special favors, misappropriation, self-exemption from policy, nepotism, and other “less spectacular dishonest practices” (such as failure to disclose conflicts of interest), are difficult to prevent and often go unpunished and unreported.50 Most illegal and unethical conduct is not perpetrated by openly nefarious officials like Boss Hogg. A large number of violations result from a lack of knowledge and understanding of the ethics laws, not from intentional behaviors, making violations even more difficult to prevent or detect. It is difficult, if not impossible, to follow laws that are not understood or that do not make sense, and a lack of adequate ethics policy is pervasive across the nation.51 There are also frequent misconceptions surrounding what behaviors are actually illegal. Often behavior appears to be “illegal because of its questionable morality[,]” but because it violates no statute, it is not actually against the law.52 These misconceptions are one of the reasons that it is necessary to develop a practice for handling citizen complaints, especially a policy that encourage dialogue. It allows members of the public not only to have their complaint heard, but it informs officials that their behavior is being perceived by the public as illegal, or at the least unethical. A strong complaint handling practice would also help to discern whether the behavior was in fact due to error or if the behavior was intentional. Policies for accountability in a democratic society should “be infused with democratic values, such as voice, due process, equal protection, inclusiveness, and checks on the improper exercise of power.”53

exempt herself from filing fees, or for a town animal control officer to exempt himself from the requirements of the local dog ordinance. It is also not unusual to hear about a town highway foreman using the town grader to fix his own driveway, or a town manager using the town mowers to cut her lawn. 50 Id. (noting that it is not uncommon for nepotistic practices such as awarding contracts to friends, relatives, or even businesses owned by the official, and because these minor infractions are rarely reported by citizens or the local newspapers, they are largely unpunished and unpreventable). 51 Davies, supra note 41. Again, Davies identifies two corollaries to this assumption: [First], ethics regulations must always be written and interpreted in light of reason, common sense, and everyday experience. An ethics code is not the Internal Revenue Code but rather a collection of general principles governing human conduct in a rather fuzzy area. [Second], in drafting an ethics law, legislators must know their customer. They must draft the law to reflect the size and nature of the particular governmental entity and the sophistication of its employees and constituents. An ethics provision that is good for a state or a major city may devastate a small municipality. What is good for the goose is not necessarily good for the gander. Id. at 177, 180. 52 Wells, supra note 42, at 3. 53 Ellen Dannin, Red Tape or Accountability: Privatization, Public-Ization, and Public Values, 15 Cornell J.L. & Pub. Pol’y 111, 129 (2005).

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B. Conflicts of Interest Government officials act as “trustee[s] of the people,” creating in them a fiduciary duty to act for the benefit of the public as they manage the assets that they have been elected to protect and hold.54 This trusteeship principal was emphasized by Supreme Court Justice Scalia in his majority opinion of Nevada Commission on Ethics v. Carrigan: “The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.”55 Conflicts of interest arise when officials are influenced to act, not for the benefit of the public, but for their own individual interest.56 These conflicts can include: use of materials for personal gain; situations that affect the official’s economic interests; receiving gifts; and using the office to advance personal goals.57 Our founders recognized the conflict that would inevitably exist between personal interest and the interest of society, and took steps within the development of our democracy to try and avoid such conflict when possible. In Thomas Jefferson’s Manual of Parliamentary Practice, he noted that that “systematic rules were necessary to curb our more divisive human instincts and prevent abuses of power.” 58 These rules were instilled throughout the government requiring that when a personal interest existed in a decision,

54 Carl Vinson Institute of Government, Handbook for Georgia Mayors and Councilmembers (Betty J. Hudson and Paul T. Hardy eds., 4th ed. 2005) (ascribing two main roles for public officers established by the language in the state constitution. The first role is that of trustee, which, according to the authors, creates a fiduciary duty to the constituents and is the “highest calling that may be granted under the law.” The second role is that of servant to the public creating a duty to respond to the public’s needs and wishes.). 55 Nev. Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2346 (2011). In Carrigan, the Nevada Commission on Ethics investigated complaints against city council member Michael Carrigan, after he took part in a vote to approve a hotel/casino project, which his long-time friend proposed and stood to benefit from. The Commission found that Carrigan had a disqualifying conflict of interest and should have recused himself from the vote. Carrigan, in turn, fought the Commission on First Amendment grounds “arguing that the provisions of the Ethics in Government Law that he was found to have violated were unconstitutional under the First Amendment.” The District Court denied the petition, but a divided Nevada Supreme Court reversed “reasoning that the provision was overbroad. The United States Supreme Court reversed the Nevada decision reasoning “that a legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it.” Justice Scalia went on to say that a “legislator casts his vote ‘as trustee for his constituents, not as a prerogative of personal power.’” (quoting Chief Justice Rehnquist’s majority opinion in Raines v. Byrd, 521 U.S. 811, 821 (1997)). 56 Markowitz, supra note 34, at 601. 57 Id. Markowitz notes that “the connection between an official’s personal interests and official obligations need not be direct, immediate, or monetary to undermine the public’s faith in local government.” This creates a higher level of difficulty avoiding the appearance of conflicts in rural communities where avoiding personal and business connections within the community is nearly impossible. Id. at 602. 58 Wells, supra note 42, at 3.

235 Savannah Law Review [Vol. 4:1, 2017] interested parties were required to withdraw from participating in the vote. Courts also use recusal to address issues of conflict of interest. The foundation for defining a conflict of interest has its origins in the Bible. Often quoted by judges, Matthew 6:24 states that “[n]o [one] can serve two masters.” 59 According to existing case law, this is especially true “when ‘one of the masters happens to be economic self-interest.’”60

C. Procedural Fairness Procedural fairness focuses on the moral principles of fairness and objectivity. The Fourteenth Amendment to the United States Constitution states in part that no “State [shall] deprive any person of life, liberty, or property, without due process of law. . . .”61 This demands that officials treat all citizens as equals, and as equal beneficiaries of their actions in office – “encompass[ing] issues of conflict of interest, prejudgment, ex parte communications, and discrimination.”62 While extreme instances of bias and prejudgment may meet muster as constitutional rights violations thereby giving a private citizen a right of action,63 these instances are not often challenged.64 Furthermore, due to increasingly strict standing analysis by the courts, positive

59 Id. 60 Id. (applying reasoning from the Court’s opinion in United States v. Mississippi Valley Generating Co., stating that “[t]he moral principle upon which the statute is based has its foundation in the Biblical admonition that no man may serve two masters, Matt. 6:24, a maxim which is especially pertinent if one of the masters happens to be economic self-interest.” United States v. Mississippi Valley Generating Co., 364 U.S. 520, 549 (1961)). 61 U.S. CONST. amend. XIV, § 1. 62 Markowitz, supra note 34, at 604 63 Citizens are entitled under Title 42 U.S.C. § 1983, to bring suit against their local government for rights violations under the United States Constitution. § 1983 provides in part that: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. Justice Brennen, in his opinion in Monell v. Department of Social Services of the City of New York, held in part that “local governments could not be held liable under a theory of respondeat superior but rather could be held liable only when the constitutional deprivation arises from a governmental custom . . . .” and that “local government officials sued in their official capacity are ‘persons’ under § 1983 in those cases in which local government is sueable in its own name.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978) (reversing a previous case that held local governments could not be sued as “persons” under § 1983). 64 Markowitz, supra note 34, at 595, n.99. The scope and expense of challenging municipal actions under the Due Process Clause often render the challenge impractical.

236 Regulating Boss Hogg lower court decisions are often overturned on appeal. But outward and extreme instances of bias and prejudgment are not the only challenge to the appearance of fairness. Even casual conversations of official business to a non-official party can create a perception of unfairness and bias, partially due to the lack of formality in local government.65 Scholars have noted that “regardless of how honest public officials are in fact, a democratic system of government cannot function properly if the public believes its officials are corrupt.”66 Without public trust in a non- corrupt system that is responsive to its citizenry, our rule of law breaks down. Therefore, public perception is critical in maintaining a properly functioning government.

D. Objectivity in Policy Making The same openness, fairness, and objectivity needed for the procedural functions of office must also be used in creating ethics policy. Policy making affects the constituency for long periods of time, and therefore it is exceedingly important to place public interest above all else in the creation of new policies.67 Unfortunately, however, many rural communities do not have ethics policies in place and lack the power to create and enforce them.68 Even where policies exist, there is often no recourse when a breach occurs.69 Additionally, balancing is an essential component of objective policy making, and the official must recognize when it is necessary to protect and advance minority interests and the interests of the chronically underrepresented population segments.70 In order to be effective, rural governments should be given the authority to create an ethics policy unique to the situation of its community. 71 The policy must be strong enough to deal with issues of corruption, yet remain flexible to address the social, demographic, and size characteristics of the community.72 There must be an enforcement measure established as well, and while even-handed, local enforcement of ethics complaints is ideal, in small towns where the appearance of conflicts of interest is inevitable, or when the complaints are brought against the highest level of local government, outside enforcement is necessary to elude the appearance of bias and preserve the public trust.73

65 Id. 66 Davies, supra note 41, at 178. 67 Markowitz, supra note 34, at 605 (noting that in addition to long-term effects to the constituency, policy decisions may also have “permanent effects on the health of the environment and the economic well-being of the business community.”). 68 Id. at 595. 69 Id. 70 Id. at 605. 71 Id. 72 Alexandru Vasile Roman, Refocusing Perspectives on Public Corruption Away from the Individual: Insights from the Moldovan Social Matrix, 43 Transylvanian Rev. of Admin. Sci., 216, 221 (2014). 73 Davies, supra note 41, at 181.

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IV. Roadblocks and Redressability If a rural municipality does have an ethics policy that addresses penalties and makes it enforceable, several roadblocks may continue to thwart a private citizen’s ability to advance a complaint and obtain a remedy for a breach of ethics policy. The first issue is standing. While private citizen standing challenges are certainly not unique to rural citizens, standing is worthy of mention if for no other reason but that without standing, a private citizen is barred from the majority of current remedies which are adjudicative. The next issues this Note defines as rural roadblocks: (a) status, reputation, and relationships; (b) lack of media presence; and, finally, (c) lack of resources.

A. Private Citizen Standing While standing is not an issue confined to rural citizens or complaints against rural officials, it is a hurdle that citizens must pass over nonetheless. Challenging the government, even when the government does wrong can be difficult – especially if the challenge ends up requiring adjudication. For an individual to have standing to pursue an action against the action of a municipality or an employee or official acting in their official capacity, that person must have not only an interest in the problem complained of, but it must be a direct interest causing either more injury, or a different injury to be suffered by him than by the general public.74 In addition to adjudication requiring standing, there are certain governmental departments that require complaints be forwarded to them by other departments, stripping the citizen of the ability to forward a complaint on their own. Some states such as Georgia, require complaints against city or county officials to be directed to the District Attorney. Unfortunately, if there are no sanctions relating to ethics violations on the books, there is no way for them to be enforced.

B. Rural Roadblocks Sometimes, the characteristics that make a small town seem ideal are the very things that foster corruption and prevent the citizens from addressing that corruption or remedying any harm suffered as a result. Close community relationships create problems with conflicts of interest. The small population base does not encourage media presence resulting in a shelter from the media’s “watchdog” function for the public officials, putting a roadblock in another path for citizens to take to expose wrongdoing and hold officials accountable. Finally, a lack of community resources in rural cities creates a substantial roadblock for citizens.

1. Status, Reputation, and Relationships Rural communities have a propensity for the appearance of bias and conflict of interest and the close-knit community ideal is one major cause. As one scholar

74 64 A C.J.S. Municipal Corporations § 2544.

238 Regulating Boss Hogg points out, the low population density in rural areas “makes the opportunity to know your neighbors a strong likelihood – though it does not mean that neighbors like one another.”75 Unethical behavior can be difficult to detect when there is a relational closeness in the community. In extremely small and isolated towns, it may be near to impossible to have enough disinterested members of a board or council to have a quorum, making “vot[ing] on an issue an onerous task.” 76 Although the relationships themselves cause bias, or at least the appearance thereof, financial interests are often the reason behind partiality and bias complaints. In a recent study of motivational forces behind public corruption, scholars identified several motivators of corruption. 77 Not surprisingly, material gain was at the top of the list.78 Such was the case in Carrigan, where the close friend of one council member would see financial gains with a favorable decision of the council.79 Other motivators included friendship, status (defined as “one’s belief that one’s social position excused or allowed such behavior”), or the feeling of being untouchable or above the law, and a desire to impress others.80 According to the study, the corrupt behaviors that result from these motivators become habitually repetitive, and that “weak organizational supervision and failures to institute policies that would otherwise uphold and enforce ethical behavior” become a catalyst for the repetitiveness.81 In many rural governments, there is a lack of strong ethical policies and culture. Further, because the governmental structure is so small in rural areas, there is inherently weak organizational supervision, resulting in the rural community being a hotbed for potential corruption. Allowing municipal officials to determine for themselves when their involvement in decisions would create a bias or the appearance of bias is “contrary to the objectivity required for fair and just public administration.”82 However, this is often the practice of officials in rural municipalities, leading to conflicts between injured or distressed citizens and the public officials, as well as conflicts amongst the public officials themselves, 83 especially given the “longstanding association with ‘internal solidarity, kinship ties, generational continuity, and traditional face-to-face society.”84

75 Louis E. Swanson, Rural Opportunities: Minimalist Policy and Community-Based Experimentation, 29 Pol’y Stud. J., 96, 103 (2001). 76 Wells, supra note 42. 77 Roman, supra note 72, at 221 (analyzing a 2008 study by de Graaf and Huberts that identified several motivators of corruption in public officials). 78 Id. at 222. 79 Carrigan, 131 S. Ct. at 2343. 80 Roman, supra note 72, at 222. 81 Id. 82 Wells, supra note 42, at 3. 83 Id. 84 Lisa R. Pruitt & Bradley E. Showman, Law Stretched Thin: Access to Justice in Rural America, 59 S.D. L. Rev. 466, 481 (2014) (citing Terry Marsden et al., Introduction: Questions of Rurality, in Rural Restructuring: Global Processes and Their Responses 1, 1 (Terry Marsden et al. eds., 1990)).

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Historian Stacy Schiff, speaking about nepotism between government officials, wrote “[t]he founding of America was very much a family affair.”85 This is still often true in isolated rural communities. Many small communities are linked together by strong family ties—in fact, in some towns you may be hard-pressed to find someone who is not related to someone in the local government. When this is the case, it may be impossible to find an unrelated person to run for an open office. While close family ties are certainly an endearing feature of rural communities, they are also another example of a feature that is both a blessing and a curse. Broad anti-nepotism law or policy would never work in these communities if these communities are to keep their close-knit charm. Therefore, some conflict of interest issues will have to be addressed carefully and on a case-by-case basis. This same approach will have to be applied to instances of nepotism, especially in the extremely small, isolated rural context where the majority of the population is related or has some type of relational interest.

2. Lack of Media Presence The isolation of the rural community means that there is often less access to media, especially larger, widespread media sources. There is a long-established consensus within the courts and among commentators that a free press is essential to democracy.86 In a democratic society, citizens have a responsibility to “share according to capacity in forming and directing the activities of the groups to which one belongs.” 87 However, this duty cannot be realized without information and knowledge about one’s groups. The media, as the historic disseminator of information, was essential in assisting democratic development. During WWII, the Hutchins Commission was formed to address ethics and responsibility in journalism. The members identified five social responsibilities that the press should use to measure performance. Additionally, it “identified three tasks that are central to the press's political role: to provide information, to enlighten the public so that it is capable of self-government, and to serve as a watchdog on government.”88 This watchdog function is necessary to expose government corruption.89 Yet the media should also serve as a deterrent to public officials who are considering an unethical or potentially unethical behavior, because, in theory, the day-to-day media will publish this incompetency as well.90 Acting as a proxy for the citizens, the press can “effectively scrutinize the conduct of public business” as long as there is transparency in government – which the media has

85 Johnson, supra note 32, at 720 (quoting Stacy Schiff, A Great Improvisation: Franklin, France, and the Birth of America 342 (2005)). 86 C. Edwin Baker, The Media That Citizens Need, 147 U. Pa. L. Rev. 317, 317 (1998). 87 Id. at 335 (quoting John Dewey, The Public and Its Problems (1927)). 88 Id. at 349. 89 Id. at 324–25. 90 Id. at 325.

240 Regulating Boss Hogg had a leading role in creating and enforcing.91 Therefore, without access to media, there is an increased potential for corruption and abuse of unchecked power by local officials.

3. Lack of Resources Another prevalent problem among rural municipalities is some form of resource crisis, or not having either the infrastructure or capital to support policies. Certainly the lack of resources is a hindrance to enforcement and limits enforcement options.92 Rural communities also lack a substantial tax base and fall short in administration.93 Sometimes, the only supplier of a service in the vicinity of a rural municipality is a public official or an individual who has a relationship with that public official. This vendor scarcity creates a dilemma for rural communities, as they face a choice of violating the ethics law, losing a hard to replace public official, or violating their trusteeship by paying more for non-local services.94 The inflexibility in existing ethics law resulting from its focus on urban areas, often dismantles the goal of promoting honesty and integrity in government when it is applied to rural communities.95 Furthermore, applying these laws rigidly to rural communities “squander[s] precious municipal resources[,]” whether that resource is economic or in manpower.96 Cumbersome ethics policies in small municipalities can function to discourage volunteers to serve.97 This is the primary reason that blanket, bright-line ethics policies are not effective or efficient in rural communities. Because most ethics laws are created at the state level, they are created with the larger state government and large municipal governments in mind. Rural towns have less of a voice in the creation of these policies because they are underrepresented, and therefore, small municipalities suffer under these policies.

V. Traditional Remedial Schemes The following examples illustrate some traditional approaches used to address ethical violations by public officials. Analyzing these methods exposes the strengths and weaknesses that can be addressed by the adaptation of a regional ombudsman system as proposed in the final section of this Note.

91 Daxton R. Stewart, Evaluating Public Access Ombuds Programs: An Analysis of the Experiences of Virginia, Iowa and Arizona in Creating and Implementing Ombuds Offices to Handle Disputes Arising Under Open Government Laws, 2012 J. Disp. Resol. 437, 437 (2012). 92 See generally Swanson, supra note 75, at 96. 93 Id. at 97. 94 Davies, supra note 41, at 184. 95 Id. 96 Id. 97 Id. at 185.

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A. Adversarial and Adjudicative Even the best-written ethics code can only be effective if there are appropriate sanctions imposed for violations. In contrast to the problem of the ability of rural communities to comply with broad ethics laws developed at the state level, however, when “ethics regulations are adopted at the city level . . . , the nature of the sanctions that may be levied will be a function of the limited (i.e., less than sovereign) powers of the city government.”98 Municipalities function by ordinance, and are restricted in their ability “to declare that conduct constitutes a crime or gives rise to a civil action for damages.”99 Depending on what type of government system they have adopted (Home Rule or Dillon’s Rule) they may have almost no local power at all. In a municipality governed by a Home Rule statute, the municipality may be able to adopt local laws pertaining to ethics that do not conflict with existing state laws. However, in a municipality that functions under Dillon’s Rule, the only powers that the municipality has are those that are “those granted in express words . . . those necessarily or fairly implied in or incident to the powers expressly granted, [or] those essential to the accomplishment of the declared objects and purposes of the [municipal] corporation—not simply convenient, but indispensable.”100 Regardless of the type of system that a municipality is governed by, however, they may still have the ability to refer ethics violations for potential prosecution if another criminal law has been violated as well.101 If a citizen is harmed by an ethics violation, the city does not possess the power to say that the injured party can file a suit for remedy, they can do little more than “set the stage” for the court system because a municipality is prohibited from creating new causes of action.102 Another issue within the city-to-court scheme is that private citizens, even if they uncover unethical or criminal conduct within their local government, lack the authority to seek a remedy. In Rainey v. Haley, John Rainey sought a declaratory judgment against Governor Nikki Haley claiming that she violated the State Ethics Act while she was serving as a member of the House of Representatives. In addition to finding that “the House Ethics Committee has exclusive jurisdiction to hear complaints of ethics violations against its own members,”103 the judge noted that Rainey, “as a private citizen, lacked the

98 Johnson, supra note 32, at 759–60 (noting that various “[e]nforcement mechanisms may include: disciplinary action; liability for damages or injunctive relief; civil fines; prosecution for perjury or other crimes; voiding of a contract; disqualification from future contracting with the city; and forfeiture of improper financial benefits.” Johnson also emphasizes the importance of non-criminal sanctions because criminal penalties are sometimes thought to be unjustified.). 99 Id. at 759. 100 Dillon Rule, The Modern Republic, http://www.modernrepublic.org/ dillon-rule (last visited Oct. 20, 2017). 101 Johnson, supra note 32, at 759. 102 Id. at 760. 103 See Rainey v. Haley, 404 S.C. 320, 322 (2013).

242 Regulating Boss Hogg authority to seek this relief because ‘. . . statutes and case law place the unfettered discretion to prosecute solely in the prosecutor's hands.’”104 The judge reasoned that by preventing criminal actions from being brought by private citizens, “the interests of the public are best served as the ‘powers of the State are employed only for the interest of the community at large’ as opposed to the potential self-interest of a private party."105 The judge further noted that without private citizen intervention, the matter would still be able to be addressed through the Attorney General’s office “either on its own initiative or via a referral from the House of Representatives Legislative Ethics Committee[.]”106 This ruling, however, applies only to state officials. The Attorney General’s office does not necessarily investigate, or have the authorization to investigate, alleged misconduct by local government officials. There is also no “across the board” determination amongst the states as to if, or who should be the office to handle such investigations, much less private citizen complaints. In some states, ethics committees have been set up on the state level and, less frequently, on the county level to field complaints and refer them to the appropriate office, but in other states, the process is murky at best. Even more frustrating is that even when an ethics violation is discovered, there are often no penalties provided separately within the ethics law itself, which leaves the only possibility of a remedy back in the hands of the attorney general or possibly a district attorney if it is found to be a criminal violation.107 Therefore, “[a]s a practical matter, ethics violations must be severe enough to also cross the threshold of violating criminal laws to face any sanction, thus creating an ‘all or nothing’ approach.”108 This structure not only disgorges the private citizen from any ability to hold public officials accountable for injuries due to ethics violations, but it “effectively eliminates any meaningful scrutiny of ethics violations” at all.109 It also forces the criminal justice system — a system in which the private citizen has no voice or standing – “to be the only significant check and balance” on local government officials and renders the “structure that supposedly addresses unethical conduct as meaningless.”110 Rarely are public officials held accountable for their “‘immoral’ yet non- criminal activities” despite the fact that they occasionally face criminal indictments.111 This has a negative effect on public trust and further exemplifies the perceived “untouchability” of local government officials. Denying municipalities the ability to rely “on private rights of action necessarily limits the

104 Id. at 332 (quoting In re Richland County Magistrate’s Court, 389 S.C. 408, 411– 12 (2010) (emphasis added)). 105 Id. 106 Id. 107 Johnson, supra, note 32, at 759. 108 Susan Pace Hamill, Ethics Reform in Alabama, 61 Ala. L. Rev. 807, 815 (2010). 109 Id. 110 Id. 111 Nonnie L. Shivers, Firing “Immoral” Public Employees: If Article 8 of the European Convention on Human Rights Protects Employee Privacy Rights, Then Why Can’t We?, 21 Ariz. J. Int’l & Comp. L. 621, 627 (2004).

243 Savannah Law Review [Vol. 4:1, 2017] effectiveness and social meaning of any municipal policy choice.”112 Without the option of private enforcement, citizens are left to rely on public enforcement, usually through criminal prosecution, which rarely occurs in the rural setting. Another issue that the private citizen faces in adversarial situations is evidentiary. Many rural individuals lack the resources and/or ability to hire attorneys and investigators to meet either the preponderance of the evidence or beyond a reasonable doubt evidentiary requirements to prove misconduct claims. These standards also significantly affect whether or not an appropriate agency will follow up on any private citizen complaints.113 As previously discussed, the majority of ethics violations must be prosecuted criminally in order to obtain a remedy (for the public at large), which means that the higher standard of proof beyond a reasonable doubt will be required.114 This means that without an intermediate agency to field and handle complaints under the civil code, holding an official accountable (i.e. obtaining a guilty verdict) becomes even more difficult. There are, of course, some occasions where it is more effective, and perhaps more efficient to bring criminal charges than to rely on civil administrative charges. Bribery, fraud, misappropriation, and embezzlement for example, are both civil conflicts of interest, and criminal charges. In such cases, it is important that any agency that may have a case against a party coordinate their efforts and assign priority based on the seriousness of the offence, burden of proof, etc. Without designated enforcement agencies and some unification in procedure, this coordination is difficult and inefficient.115 In addition to the difficulty that the private citizen has in initiating criminal enforcement of a grievance, the process is typically very slow and cumbersome.116 This makes adjudication of complaints an arduous and expensive process that few citizens are willing or able to pursue. This can be difficult to justify knowing that even a favorable judgment will most likely not bring a sizable recovery for damages. Furthermore, and especially in close-knit rural communities, there are usually few people who are willing to serve as witnesses for fear of retribution and damage to their status or reputation.117 Also, in rural areas, prosecutors may be less likely to prosecute because of their own conflicts of interest, among other reasons. By placing the criminal justice system in the position of being the sole check and balance for ethical conduct of public officials, lawmakers and policy makers are missing the point. In many instances regarding private citizen complaints, whether the complaints be against public officials, police officers, or the sales

112 Paul A. Diller, The City and the Private Right of Action, 64 Stan. L. Rev. 1109, 1140 (2012). 113 See Patricia E Salkin, Ethical Standards in the Public Sector Ch. 11 (2d ed. 2008). 114 Id. 115 Id. 116 Richard S. Jones, Processing Civilian Complaints: A Study of the Milwaukee Fire and Police Commission, 77 Marq. L. Rev. 505, 511 (1994). 117 Id.

244 Regulating Boss Hogg clerk at a local general store, the “citizen complainants are merely unhappy with [a specific instance of] conduct . . . and would be satisfied with an explanation or an apology.”118 The criminal justice system, however, does not provide for something simple like a conversation and explanation. Adversarial and adjudicative approaches to ethics law violations do not provide a citizen a voice. What the citizen has to say, if the complaint makes it to a judicial proceeding, is often limited to what is in the original complaint itself,119 and without the ability to afford an attorney or an outside investigation, the chances of prevailing in the proceeding as the complainant are slim to none.

B. Ethics Committees and Review Boards Citizen review boards, such as those used to field complaints against law enforcement officers, have met with limited success. One of the main reasons for this is their lack of enforcement abilities.120 Even when laws are codified, as previously noted, sanctions for the offenses are often left out, leaving the law function as essentially just a guideline.121 However, these review boards do offer to do one thing, and that is to give a private citizen a voice, therefore, I have included police review boards along with ethics committees in this look at current methods of handling citizen complaints. Independent review boards have become increasingly more popular within the past decade, and, at least as far as law enforcement is concerned, have become the practical norm.122 Some of the reasons given for this is that self-policing is ineffective, and that legitimacy of departments is compromised without external review. Similarly, municipalities are ineffective at holding themselves accountable, and public trust in the government is compromised without further review. Furthermore, in both police and government applications, an analysis of complaints may identify recurrent issues that could lead to policy changes.123 Having an external review process allows citizens to have a voice, usually through some form of a mediation- type process, where individuals are empowered to use dialogue to attempt to solve their existing issues.124 Some ethics committees and commissions are finally now being given the power by their state governments to enforce ethics law violations. One state which is allowing this expansion or change in enforcement power is New Jersey. In 2004, a Special Ethics Counsel was appointed by the New Jersey governor to investigate compliance with ethics laws and make recommendations for reform

118 Id. 119 Id. Additionally, Jones alludes to the fact that the credibility of the complainant often causes the complaint to be largely ineffective resulting in negative treatment. Id. 120 Id. at 505–06. 121 Carl Vinson Institute of Government, supra note 54. In Georgia, for example, there are no sanctions provided for violation of any of the 10 principles of conduct highlighted in the code of ethics for governmental service, meaning that although a statute exists, its affect is advisory only. 122 Jones, supra note 116, at 506–07. 123 Id. at 507. 124 Id. at 514–15.

245 Savannah Law Review [Vol. 4:1, 2017] within the state. Although on the state level, this report provides valuable information to assist the development of programs focused specifically on rural areas. Recommendations included modifying the existing ethics laws to make them clear and concise, and included the establishment of an independent State Ethics Commission charged with enforcing compliance of ethics laws with tough penalties for violators. The Counsel also recommended that the state require all state officials and employees undergo ethics training. Further, the newly established Ethics Commission would conduct routine ethics auditing not only to ensure compliance with existing laws, but to identify and correct weaknesses within the system.125 In their report, O’Hern and Franzese identify three requirements for enhanced government integrity: First, public officials must possess knowledge and understanding of the governing ethics standards and the consequences of conduct and misconduct; Next, official and personal finances should be independently audited to shield them, “to the greatest extent possible, from the specter of undue influence[;]” and finally, public officials must be aware that their “conduct is subject to transparency, scrutiny and accountability.”126 In consideration of these three requirements and additional considerations, O’Hern and Franzese developed an agenda for ethics reform. New Jersey has successfully (albeit slowly) been implementing these ideas into their state ethics policy. The first recommendation was to “create an independent watchdog.”127 They recommended that members of the State Ethics Commission serve in staggered and limited terms ranging from two to four years depending upon position. They also recommended that the Commission be comprised of seven bi-partisan public members. They noted that in addition to their recommendations in this area, that some states require more measures to ensure independence such as not participating in campaigning and lobbying, and not holding public office. This independence from political influence would be not only during the time serving the Commission, but perhaps for some period of time before and after accepting appointment. Furthermore, members would not be salaried, but would receive a stipend of $250 per meeting consistent with other New Jersey Commissions.128 These regulations increase the perception of public trust by proactively addressing potential conflict of interest problems within the very commission meant to address these problems within local governments. To combat any confusion and misunderstanding of their policies, the Commission “drafted a Plain Language Ethics Guide to explain clearly and

125 See Daniel J. O’Hern, Sr. & Paula A. Franzese, Report of Special Ethics Counsel to The Governor of the State of New Jersey, Ethics Reform Recommendations for the Executive Branch of New Jersey Government (2005), http://www.state.nj.us/ethics/docs/reports/ethics_report.pdf. 126 Paula A. Franzese & Daniel J. O’Hern, Sr., Restoring the Public Trust: An Agenda for Ethics Reform of State Government and A Proposed Model for New Jersey, 57 Rutgers L. Rev. 1175, 1178 (2005). 127 Id. at 1179. 128 Id. at 1185–86.

246 Regulating Boss Hogg plainly the ethical standards and requirements that must be met by everyone in government service.”129 In addition to serving as a training tool, the guide is meant to assist officials and employees in handing everyday ethical decisions and dilemmas. It provides clear “advice regarding standards of conduct, conflicts of interest, gifts, nepotism, compensation, financial-disclosure requirements, and post-employment restrictions, with easy references to relevant State statutes and rules.”130 It additionally outlines the roles of the Commission and elucidates the complaint filing procedures.131 They also removed ignorance as a defense to violations of the guide by requiring that all officials and employees read and vow to uphold the principles held within the Guide. As their review states: “Knowledge is power, and better understanding yields better compliance.” 132 In accordance with providing knowledge, third parties doing business with the State are required to adhere to a newly created Business Ethics Guide to prevent third party violation as well as to prevent a third party from causing a state employee or official to violate.133 Additionally, mandatory ethics training should be required of all officials and employees, which would be available both in person and on-line, and would include “annual briefings and routine refresher courses on ethics and standards of conduct for all State employees” as well as additional training for more specialized positions and fiduciaries.134 To ensure enforceability, existing ethics laws should be simplified and converted into a Uniform Ethics Code. Like many other states, when this report was issued, New Jersey’s ethics restrictions scattered among multiple codes and agencies. The Commission would be responsible for dissemination of the code, which would serve as a baseline, and could be supplemented by other relevant guidelines as needed within specific agencies.135 O’Hern and Franzese additionally proposed “stricter anti-nepotism laws, a rigorous zero-tolerance policy on the acceptance of gifts, transparency in the contracting process and more effective post-employment restrictions.” These rules prevent officials and employees from “participating in decisions to hire, retain, promote or determine the salaries of immediate family members, cohabitants, and persons with whom the officer or employee has a dating relationship.”136 They also prohibit supervising or exercising authority over the aforementioned groups of people.137 They require that all discussions of bids between public officials be done in writing to “protect the integrity of the

129 Id. at 1180. 130 Id. at 1198. 131 Id. 132 Id. at 1180. 133 Id. at 1199. 134 Id. at 1189–90. 135 Id. at 1195–96. 136 Id. at 1212. 137 Id.

247 Savannah Law Review [Vol. 4:1, 2017] procurement process,” reasoning that “[i]f a contact is above-board, there is no reason that it should not be in writing.”138 To assist with ease of accessibility and to encourage public participation, they recommended that the Commission should establish a reporting hotline and assume the control over the existing website. The confidential, toll-free hotline should be available to the public as well as employees of the state for the purpose “voicing concerns, making complaints, and asking questions.”139 To promote transparency and to increase the integrity of the workplace, all hotline and website communication should be both privileged and confidential.140 Community participation in the government fosters a vigorous political economy. It was noted that “a responsible press, law enforcement authorities, community activists, the organized bar, law schools, religious leaders, participants from the coordinating branches of government—who are willing to speak up and speak out[,]” are just as important as solid laws.141 To this extent, if we expect more, we gain more. Another common weakness that is addressed this the O’Hern/Franzese plan is resource sharing and coordination among agencies. This plan includes expansion of responsibilities of some offices to extend to local and county governments. It also requires that each government agency charged with enforcement of ethics laws know and understand what its own duties and responsibilities are and how they relate to other agencies, essentially creating a “joint task force of relevant agencies… to fight fraud, waste and ethical misconduct in government.” 142 One of the biggest failures of all ethics law is its lack of enforceability. To address this, it was recommended that the Commission be “vested with vigorous enforcement mechanisms” and “authority to impose a broad range of significant penalties” upon violators of ethics laws. This includes the power of removal or suspension from office, “demotion, public censure, reprimand, [and] restitution” among others. The Commission should also be able to implement regulations, enforce civil penalties, and dismiss unsubstantiated complaints.143 Absolute confidentiality and immunity is imperative for filers of complaints. However, the creation of such an extensive policy is costly in both time and resources. To minimize waste and maximize efficiency, the ability to dismiss frivolous complaints is necessary.144 According to the Counsel, these penalty and enforcement recommendations are consistent with other commissions mechanisms and “will add muscle to its mandate.”145 In addition to addressing state-level concerns, O’Hern and Franzese did briefly address smaller municipalities. They noted that while there has been a

138 Id. at 1216–17. 139 Id. at 1194–95. 140 Id. 141 Id. at 1180–81. 142 Id. at 1181. 143 Id. at 1186–87. 144 Id. at 1188. 145 Id. at 1187.

248 Regulating Boss Hogg local ethics law established since 1991, it is essentially nonfunctional in that there are no real provisions for enforcement, and the power to enforce is “vested either in local municipal ethics boards or in the Local Finance Board in the Division of Local Government Services in the Department of Community Affairs.” It is further noted that similar to the existing state functions, “supervision and control in this realm is well-intended, but toothless.”146 O’Hern and Franzese therefore recommended that on the local level, the State Ethics Commission be “authorized to implement and make binding upon local government our proposed Uniform Ethics Code.”147 The Commission will then partner with other agencies to provide the mandatory training and implement ethics audits.148

VI. The Regional Ombudsman Solution Upon a close analysis of the existing methods used to address ethics complaints from citizens, I have identified four main categories upon which the success of a program must rely. The first category is independence, followed by influence on policy, knowledge and understanding, and finally enforcement. However, due to budget and personnel shortages in rural areas, there are also several “rural roadblocks” to overcome to develop such a program, primarily a lack of resources. That is why I propose a regional ombudsman program to effectively handle these complaints. The idea to use an ombudsman model to address ethics issues is not unique in and of itself. Both the United States Ombudsman Association (“USOA”) and the American Bar Association (“ABA”) have recommended that both state and local governments establish an office of ombudsman. The problem lies primarily in implementation. Few states have followed through with the recommendation of establishing an office of ombudsman for the purpose of ethical review of officials or fielding citizen complaints, 149 and even fewer have created ombudsman programs that resemble the guidelines set forth by either organization. An ombudsman model incorporates practices found within the familiar alternative dispute resolution model, such as mediation and negotiation to provide individuals with a voice to redress complaints against the government. The USOA promotes a classic ombudsman model that defines a Governmental Ombudsman “as an independent, impartial public official with authority and

146 Id. at 1219–20. 147 Id. at 1220. 148 Id. at 1221. 149 Throughout my research, I have discovered that most states have an ombudsman for eldercare, and many have ombudsman offices that address other complaints within departments. Unfortunately, few have established state-wide, or regional ombudsman offices that address general grievances by the citizens and attempt to develop satisfactory solutions to valid complaints. See e.g., United States Ombudsman Association, Governmental Ombudsman Standards (2003), http://www.usombudsman.org/site-usoa/wp-content/uploads/USOA- STANDARDS1.pdf [hereinafter Governmental Ombudsman Standards].

249 Savannah Law Review [Vol. 4:1, 2017] responsibility to receive, investigate or informally address complaints about government actions, and, when appropriate, make findings and recommendations, and publish reports.”150 Legislative ombudsmen, or classical ombudsmen, are influenced heavily by the original Swedish model and were the first type of Ombudsman programs in the United States.151 They were created to have a controlling impact on fair decision making within the government to ensure public benefit. Today, this impact is generated through the investigation of public grievances, recommendations for improvement in the management of legislative programs, and “by providing broad oversight over the legislature's actions and how they affect the public.”152 Additionally, “legislative ombudsmen also have the power to criticize, confidentially or publicly. . . [but] do not have the ability to reverse governmental action (or inaction).”153 Both the USOA and the ABA also recognize the four standards for the role of the Ombudsman which are: “Independence, Impartiality, Confidentiality, and Credible Review Process.”154 In addition to these four standards, the ABA has identified 12 characteristics necessary for statutes establishing an Ombudsman. 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;

150 Id. 151 Eric S. Adcock, Federal Privilege in the Ombudsman’s Process, 8 Charleston L. Rev. 1, 10 (2013). 152 Id. at 17. 153 Id. at 18. 154 Governmental Ombudsman Standards, supra note 149, at 1.

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(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. 155 It is important to understand that while the power vested in the Ombudsman is limited, it is also expansive. While the Ombudsman has no real enforcement or policy making power under the classic model, the office holds strong persuasive power including the ability to utilize publication of findings averse to public policy or recommendation if the enforcement agencies refuse to act.

VII. Why Regional? While the establishment of a local Ombudsman’s office would be ideal, many rural communities would not be able to support it, and having a single state-wide Ombudsman would be too far removed from the rural communities, perpetuating their feelings of isolation and disconnect from the government. In order to encourage citizen participation in their government through the Ombudsman program, I suggest that the use of regional offices would be the most effective and efficient way to achieve this. Communities would then be able to pool their resources, and having at least one larger city within the region would help to financially offset the need for multiple offices. A regional location would also make it easier for the Ombudsman to find mediators in the area to encourage dialogue between the complainant and municipal official, therefore assisting the office in its task of encouraging the parties to help themselves. Having a regional Ombudsman also helps to equalize power (and the appearance of that power) between the complainant and the municipality. Having to rely on a state agent, at least for appearances sake, somewhat negates that equalization, especially when the rural citizen already feels isolated from the state government. Additionally, a regional Ombudsman is beneficial to the rural municipality by cutting potential costs from having to have the City Attorney to review complaints and make recommendations. Considering also that many city attorneys represent multiple rural communities,

155 American Bar Association, Standards for the Establishment and Operation of Ombuds Office 18 (2004), http://www.americanbar.org/ content/dam/aba/migrated/leadership/2004/dj/115.authcheckdam.pdf.

251 Savannah Law Review [Vol. 4:1, 2017] the establishment of a semi-local, or regional program would save them valuable time that they could direct to those instances where their expertise is required.

A. Independence Applying the Ombudsman model to the need for an independent agency to handle citizen complaints is an effortless alignment. Especially given since “[i]ndependence is a core defining principle of an effective and credible Ombudsman.” 156 According to the United States Ombudsman Association (“USOA”), an “Ombudsman should be independent to the greatest degree practicable.”157 The Ombudsman’s authority should be created through statute or ordinance by legislation to give the ombudsman a robust and permanent role. Other means of establishment place undesirable limitations upon the office. When the office is firmly established, the authoritative power of the Ombudsman is “less apt to be challenged, compromised, or diminished.”158 Further, legislative appointment prevents the Ombudsman ensures the most independence because the legislation is outside of the scope of the office’s jurisdiction. The less independent the office is, the more suspect the investigation will appear, and the vulnerability of the office to retaliation will increase. Rural municipalities need an independent agency to account for their inability to self-govern ethics compliance and prevent the inherent conflict of interest issues arising out of internal investigations. By establishing a centralized, regional office to field complaints, rural citizens would have access to investigative and evaluative services at no direct cost, which would create a positive connection between themselves and their government. Feeling connected builds government integrity and increases public trust. Even if the complaint is unjustified, the Ombudsman will still provide the complainant an explanation for the actions of the municipality. Again, because the majority of complaints can be settled through a simple apology or explanation, this provides the citizen with some closure to their issue. This process also enables the Ombudsman to address those behaviors that are not statutorily unethical or unlawful, but have the appearance of being so. Again, enhancing government integrity and increasing public trust.

B. Influence on Policy Although the Ombudsman has no specific or enumerated power of policy creation,159 the Ombudsman can affect policy in many ways.160 First, a clear, concise ethics policy is a prerequisite for the office of the Ombudsman to be effective and efficient in handling complaints, therefore, if such a policy has not

156 Governmental Ombudsman Standards, supra note 149, at 2. 157 Id. 158 Id. 159 Shirley A. Wiegand, A Just and Lasting Peace: Supplanting Mediation with the Ombuds Model, 12 Ohio St. J. on Disp. Resol. 95, 99 (1996). 160 Id. at 139 (for example, the ombudsman “possesses the power to publicize governmental wrongdoing,” as well as to advise and educate).

252 Regulating Boss Hogg been created, the Ombudsman may be able to submit recommendations to help clarify and simplify any existing policy. Furthermore, the Ombudsman’s office is meant to supplement existing laws, so the ethics policy should be codified so that referrals of complaints can be made to the appropriate agency. Additionally, the Ombudman would have the ability to make recommendations regarding penalties for violations and remedies for those injured. Sometimes, even when an individual complaint lacks a remedy, the Ombudsman may identify problem areas within the municipality’s administration, or within the law itself, and the Ombudsman’s recommendation may result in the possible improvement of overall government function or amending the law. Another less direct influence that the Ombudsman could have on local policy is uniformity. As previously noted, existing ethics laws and policies are scattered among different codes and agencies. This lends to inefficient and irregular application of these laws. When a complaint regarding one of these laws reaches the office of the Ombudsman, the Ombudsman can reach out to the Attorney General’s office for an opinion to be distributed among the municipalities within the state to provide for uniform application of that law, regardless of the outcome of the original complaint. On balance, the Ombudsman would provide both citizens and local officials with guidance regarding existing policy and a healthy, useful outlet for influencing and improving policy for the future.

C. Knowledge and Understanding While the office of Ombudsman is not directly responsible for ethics training, the functions of the office inherently provide both the municipality and the public with knowledge and understanding of ethics policies and laws, as well as the possible consequences for violation. One of the key components for impartiality during dialogue is to make certain that all parties are fully informed to the best of your capacity.161 The Ombudsman does this by explaining, in detail, each applicable provision in the current laws and policies that relate to the complaint. This is done for both parties, so that they are on equal footing when it comes to the general policy understanding. Among recommendations that the Ombudsman can make is a recommendation for ethics training. If, during an investigation, the Ombudsman finds that there is a lack of understanding of the ethics laws and policies, the office may make a recommendation to the administration of the municipality for additional ethics training. The office might also be able to resolve some misunderstandings or misinterpretations of policies provided that they are general and do not pertain to an ongoing investigation.

161 “The ombuds office carries with it the potential to satisfy those who argue that present ADR processes produce results that ‘may be qualitatively defective due to a lack of information needed to produce accurate results.’” Id. at 143.

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D. Enforcement One thing that appears to be missing from this model is the ability to enforce policies and regulations. While there has been an emphasis on enforcement throughout the research leading me to develop this solution, in order to maintain independence, the office of ombudsman should not be charged with enforcement. State-wide policies must however, be developed to form a navigable system of agencies to which the ombudsman’s office would make referrals and recommendations for enforcement actions as necessary. This is essential to the effectiveness of the office. While these recommendations are not requirements and are not enforceable, as a function of accountability, any office refusing to take action upon the referral of the office of the Ombudsman risks negative publicity. What the Ombudsman’s office does provide, is a qualified review process which “encompasses the authority granted to the Ombudsman and the Ombudsman’s responsibilities towards the complainant, the subject of a complaint, the appointing entity, and the public.”162 The goal “is to guide people to their own resolutions, [and] improve the administration of public or private programs[.]”163 Although investigation of complaints a primary function of the Ombudsman, other resolution “options include providing information and referrals, expediting individual matters, coaching people to take action on their own behalf, mediating, or providing other assistance.”164 Additionally, “the Ombudsman should be empowered to investigate complaints from any sources and to initiate an investigation into a matter when there has not been a complaint from the public.”165 An empowered, impartial office such as this would not only empower the citizen and hold the government accountable, but increase public trust in government, possibly beginning a cycle of “perception healing.”

VIII. Conclusion Ruralism and the effect of the rural environment on traditional community dilemmas such as relationships, lack of resources, and media presence creates roadblocks for rural citizens attempting to advance ethics complaints against public officials. The overall effect renders the private citizen essentially powerless to advance ethics complaints against public officials and employees in these rural municipalities. By examining the current, often corrupt, situation of rural communities as well as methods currently in use to resolve citizen complaints, I ultimately recommend a modified, regional ombudsman program to field, investigate, and act upon such complaints. A regional ombudsman program could provide an effective and efficient means for a citizen to have a voice without the influence of local political forces, and it also overcomes many of the problems and weaknesses in other systems – primarily cost, lack of resources (manpower), and appearances of bias. A program such as this may not only hold public officials accountable for their actions, but also increase the public’s trust in government, and make positive policy changes in rural communities.

162 Governmental Ombudsman Standards, supra note 149, at 8. 163 Adcock, supra note 151, at 7. 164 Governmental Ombudsman Standards, supra note 149, at 8. 165 Id. at 10.

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IX. Appendix A

American Bar Association

Administrative Law Section

Ombudsman Committee

A. The Ombudsman 1. Definition The Ombudsman is an independent governmental official who receives complaints against government agencies and officials from aggrieved persons, who investigates, and who, if the complaints are justified, makes recommendations to remedy the complaints. 2. Basic Concept The Ombudsman system is one of the institutions essential to a society under the Rule of Law, a society in which fundamental rights and human dignities are respected. Human rights are not protected simply by constitutions or legislation, by guarantees or speeches, by proclamations or declarations, but primarily by the availability of remedies. The Ombudsman system is one of the remedies which seeks to preserve human rights. 3. Reasons for Ombudsman a) The post-World War II growth of the welfare state. Government grew in size and extensive powers were given to agencies. Protection is needed against executive and administrative mistake and abuse of power. b) The activities of public administration have become so comprehensive and the power of the bureaucracy so great that the legal status of the individual needs additional protection. c) Existing mechanism – courts, legislatures, the executive, administrative courts, and administrative agencies – are not sufficient to cope with the grievances of the aggrieved and there is a need for a supplementary institution. d) The presence of the Ombudsman has psychological value. His office gives the citizen confidence that there exists a watchdog for the people who will hold government accountable. e) The legislature traditionally concerned with the observance of laws and rulings by public officials has at the same time extensively delegated powers to the administrative authorities. The

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Ombudsman can serve to aid the legislature in its function of supervising the executive and administrator. f) The Ombudsman gives the citizen an expert and impartial agent without personal cost to the complainant, without time delay, without the tension of adversary litigation, and without requirement of counsel or the intervention of those highly placed. 4. Types of Action or inaction which Gives Rise to Complaints 1. Injustice 2. Failure to carry out legislative intent 3. Unreasonable delay 4. Administrative error 5. Abuse of discretion 6. Lack of courtesy 7. Simple clerical error 8. Oppression 9. Oversight 10. Negligence 11. Inadequate investigation 12. Unfair policy 13. Partiality 14. Failure to communicate 15. Rudeness 16. Maladministration 17. Unfairness 18. Unreasonableness 19. Arbitrariness 20. Arrogance 21. Inefficiency 22. Violation of law or regulations 23. Abuse of authority 24. Discrimination 25. Disability to act 26. Errors, mistakes, carelessness 27. Disagreement with discretionary decisions 28. Inconsistent with general course of an agency’s function

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29. Mistakes in law or arbitrary in ascertainments of facts 30. Based on irrelevant consideration 31. Unclear or inadequately explained when reason should have been revealed 32. Inefficiently performed 33. All other acts of injustice that frequently the governors inflict upon the governed, intentionally or unintentionally b) The Ombudsman may also recommend clarification, amendment, or initiation of legislation and administrative rules and regulations. 5. American Bar Association Resolution

The following Resolution dealing with the establishment of an Ombudsman was adopted by the American Bar Association at the Midyear Meeting of the House of Delegates in 1969.

BE IT RESOLVED, That the American Bar Association recommends:

1. That state and local governments of the United States should give consideration to the establishment of an ombudsman authorized to inquire into administrative action and to make public criticism.

2. That each statute or ordinance establishing an ombudsman should contain the following twelve essentials:

(1) authority of the ombudsman to criticize all agencies, officials, and public employees except courts and their personnel, legislative bodies and their personnel, and the chief executive and his personal staff; (2) independence of the ombudsman from control by any other officer, except for his responsibility to the legislative body; (3) appointment by the legislative body or appointment by the executive with confirmation by the 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;

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(6) freedom of the ombudsman to employ his own assistants and to delegate to them, without restrictions of civil service and classification acts; (7) freedom of the ombudsman to investigate any act or failure to act by an y agency, official, or public employee; (8) access of the ombudsman to all public records he 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 and answering statement; (12) immunity of the ombudsman and his staff from civil liability on account of official action. 3. That for the purpose of determining the workability of the ombudsman idea within the Federal government, the Federal government should experiment with the establishment of an ombudsman or ombudsmen for a limited geographical area or areas for a specific agency or agencies or for a limited phase or limited phases of Federal activity.

4. That establishment of a Federal government-wide ombudsman program should await findings based upon the experimentation recommended.

BE IT FURTHER RESOLVED, That the Section Administrative Law is authorized to present the views of the Association and to encourage the establishment of ombudsmen in accordance with the provisions of this Resolution, by all necessary and appropriate means.

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