The functions of an Ombudsman: Annotated Bibliography

The functions of an Ombudsman: Annotated Bibliography

Nathalie Des Rosiers
Présidente, Commission du droit du Canada
President, Law Commission of Canada

And – et

Audrey Boctor

As background materials for the Conference, we thought it might be useful to have a brief review of the writings on several aspects of the functions of an Ombudsman office. It is organized in different sections: The Origins of the Institution (A.), its popularity (B.), the variety in the models (C.), its functions (D.), as dispute resolution office, a prevention mechanism and an agent of change.

The presentation will focus mostly on these three functions of an Ombudsman and the challenges that they present.

  • Origins of the Institution
    1. "Although forms of the ombudsman mechanism have been seen in various cultures around the world over past centuries, most scholars point to Sweden as the place where the modern ombudsman model had its roots. In particular, the establishment of the justitieombudsman (ombudsman for justice) in Sweden in 1809 is seen as the birth date of the contemporary model. This institutional model did not spread beyond Sweden until over one century later, when it was established in other Scandinavian countries – in Finland in 1919, Denmark in 1955 and Norway in 1962. It was the western Scandinavian ombudsman format which did not include jurisdiction over the courts, found in Denmark and Norway, that became the popular template for the design of ombudsman institutions created in the following decade.”

      Linda C. Reif, “Introduction” in Linda C. Reif, ed. The International Ombudsman Anthology (Kluwer Law International: The Hague, 1999) at xxiii-xxiv.

      See also Daniel Jacoby, Le Protecteur du Citoyen (Trois-Pistoles: Éditions Trois-Pistoles, 1998) at 27-30 [Protecteur], H.H. Kirchheiner, “The Ideological Foundation of the Ombudsman Institution” in Linda C. Reif, ed. The International Ombudsman Anthology (Kluwer Law International: The Hague, 1999).

    2. Ombudsman est un mot suédois qui signifie « celui qui parle pour autrui » ou « porte-parole. »

      Jacoby, Protecteur, supra para 2.

  • Popularity of the Institution
    1. "The factors which have led to the rise of the institution of Ombudsman are well-known. Within the last generation or two the size and complexity of government has increased immeasurably, in both qualitative and quantitative terms. Since the emergence of the modern welfare state, the intrusion of government into the lives and livelihood of individuals has increased exponentially. […] As a side effect of these changes, and the profusion of boards, agencies and public corporations necessary to achieve them, has come the increased exposure to maladministration, abuse of authority and official insensitivity. And the growth of a distant, impersonal, professionalized structure of government has tended to dehumanize interaction between citizens and those who serve them. […] The inadequacy of legislative response to complaints arising from day-to-day operations of government is not seriously disputed. […] The limitations of courts are also well known. Litigation can be costly and slow. […] The ombudsman represents society’s response to these problems of potential abuse and supervision. […] In short, the powers granted to the ombudsman allow him to address administrative problems that the courts, the legislature, and the executive cannot effectively resolve.”

      B.C. Development Corp. v. Friedmann [1984] 2 S.C.R. 447 at 459-461.

  • Variety of Ombudsman Institutions
    1. Since the office began to appear in North America in the late 1960’s, there has been a massive proliferation of institutions based on the Ombudsman model in both public and private sectors. The two basic models are the public or “classical” ombudsman, established by an Act of parliament, and the private or “organizational” ombudsman, who works within institutions such as universities and corporations.

      Howard Gadlin, “The Ombudsman: What’s in a Name?” (2000) 16(1) Negotiation Journal 37 [What’s in a name?].

    2. As noted by Jacoby, « Enfin, il m’apparaît clair que le rôle de l’ombudsman, dans un pays donné, ne peut se comprendre qu’en relation avec le développement et l’environnement de ses institutions publiques et la culture nationale. »

      Jacoby, Protecteur, supra para 2 at 25.

      See also Oosting, Marten, “The Ombudsman and his Environment: A global view” in Linda C. Reif, ed. The International Ombudsman Anthology (Kluwer Law International: The Hague, 1999) [Global View]. Oosting roughly divides countries into two main categories: established democracies and new democracies. In established democracies, Oosting writes that the ombudsman is more of a supplement to longer-established institutions. These countries are generally welfare states whose governments are responsible for providing a wide range of services to citizens. Moreover, such countries already operate within some type of system that includes checks and balances and accountability mechanisms. Thus, a main challenge of the Ombudsman in these countries is to carve out his or her own place within the existing system, and to demonstrate that he or she is indeed necessary and useful. In newer democracies, where the rest of the government infrastructure is also still being established, the ombudsman as a new institution will need to gain a firm foundation, such as enshrinement in the constitution in order to be insulated from political uncertainty. Moreover, the ombudsman in a newer democracy must be conscious of not giving rise to expectation he or she cannot meet. In newer democracies, ombudsmen must also be prepared to face governments who may oppose their work.

    3. Similarly, Daniel Jacoby, who served as the Protecteur du Citoyen in Quebec writes: « Règle générale, l’ombudsman […] est une personne chargée de recevoir les plaintes des citoyens ou de personnes morales qui s’estiment lésés par la mise en oeuvre des lois et des programmes gouvernementaux, par suite d’une erreur, d’un abus, d’une illégalité ou d’une autre forme d’injustice. »

      Jacoby, Protecteur supra para 2 at 22.

    4. Definitions of organizational ombudsmen are similar. According to Mary P. Rowe, “An organizational ombudsperson is a confidential and informal information resource, communications channel, complaint-handler and dispute-resolver who helps an organization work for change.”

      Rowe, Options, Functions, Skills, supra para 1 at 103.

  • Functions
    1. According to Stieber:

      “Common threads run through the conceptual fabric of every ombudsman’s office – all aim to humanize administration, to support fairness, accountability, and equity. All ombudsmen can be approached in confidence. No ombudsman has enforcement or disciplinary powers. All depend on the power of persuasion, as well as the credibility of the office, which leads individuals to trust it. Although the process in achieving objectives of fairness may differ, the product is the same: a chance for ordinary people, those without power or prestige, to be heard and to get fair treatment.”

      Stieber, 57 Varieties, supra para 3 at 56-57.

Several common themes emerge from the literature:

  • The ombudsman as a means of alternative dispute resolution
    1. The ombudsman as an alternative means of resolving disputes is a feature discussed by several authors. The ombudsman is seen as an alternative to costly litigation and inaccessible formal grievance procedures. As noted by the Supreme Court of Canada, in reference to the classical ombudsman, “In short, the powers granted to the ombudsman allow him to address administrative problems that the courts, the legislature, and the executive cannot effectively resolve.”

      B.C. Development Corp. v. Friedmann, supra para 5 at 461.

    2. As noted by Jacoby: “The ombudsman offers easy access because, in general, it avoids the formalities typical of judicial or administrative procedures. Many complaints are made verbally without a requirement for submissions in writing or attendance at formal meetings. The fact that recourse to the ombudsman is almost always free of charge is also a determining factor. Lastly, the informal, non-bureaucratic nature of the procedure makes it more personalized and human when compared to other procedures.”

      Daniel Jacoby, Future, supra para 27 at 20.

    3. In reference to the classical ombudsman, Jamieson writes:

      “The ombudsman is one such instrument for conflict resolution which is evolving from historic origins into a highly effective and attractive option. The ombudsman concept involves the public, on the one hand, who calls upon the ombudsman for assistance and government, on the other, which may be obliged to submit to external scrutiny, but who at the end of the day decides if it will agree to an appropriate and adequate resolution. The ombudsman is squarely in the middle.”

      Roberta Jamieson, “Alternative Dispute Resolution” in Linda C. Reif ed. The International Ombudsman Anthology (Kluwer Law International: The Hague, 1999) at 615 [ADR].

    4. Perhaps the main characteristic that sets the ombudsman apart from more formal dispute resolution mechanisms such as courts is the fact that the ombudsman’s recommendations are not binding on authorities. However, this is not seen as a weakness. Indeed, as Jacoby writes:

      “The advantage of an ombudsman, as opposed to a court of law, is that it does not have the power to enforce its decisions. The power only to recommend gives it the power of moral suasion. Authorities appear satisfied that the ombudsman has no means of coercive action. This males it seem ‘less dangerous’ than a court.”

      Jacoby, Future, supra para 27 at 21.

    5. Oosting similarly argues that the absence of power to enforce decisions is a major benefit of the institution:

      “I have already drawn attention to the fact that most ombudsmen are not vested with the power to make legally binding decisions. This might, at first, seem to be a serious handicap. But is the ombudsman were to possess such powers, he would, in fact, be little more than another court. And it is precisely from the fact that it is not a court that the institution derives its identity. The ombudsman is, generally speaking, more flexible and has more room to maneuver than a court which is, after all, bound by the rules of procedural law. Furthermore, although it is important for the ombudsman to make clear what the consequences of his finding should be, he has to leave it to the government to decide what action to take about those consequences. This demands an active stance on the part of the government. What might at first sight appear to be a weakness is, in fact, the key to the significance of the ombudsman.”

      Oosting, Global View, supra para 9 at 10.

    6. Writing about organizational ombudsmen, Rowe notes that these offices often function as an integral element of a larger dispute resolution system. “The ombuds practitioner typically works closely with supervisors and with other dispute resolution structures within an organization.”

      Rowe, Dispute Resolution, supra para 23 at 356.

    7. One of the functions of the ombudsman will therefore be to refer individuals to other offices when appropriate, and to accept referrals from other offices.

      Ibid.

      See also Jacoby, Future, supra para 27. Jacoby writes, “When ombudsmen receive complaints that are outside their jurisdiction, they should refer complainants to the appropriate authorities rather than just wash their hands of the situation.” at 29.

    8. According to Rowe, one of the major benefits of the office is its ability to tailor responses and dispute resolution mechanisms to the particular circumstances of each case: “Ombudsmen do not deliver “due process” in the sense of a court system. They encourage practices that are fair and just and respectful. They work to foster whatever responsible process in “due under the circumstances”; (in the ideal situation, this process is one chosen, or at least agreed to, by the parties).”

      Rowe, Dispute Resolution, supra para 23 at 354.

    9. Wagner similarly writes: “Mediation is of course one of the functions of an organizational ombuds. A fundamental part of the mission is to work with each individual complainant, or primary parties to a dispute, to craft and elegant – and often unique – resolution to each particular situation, one that will be satisfactory and sustainable for those individuals in that specific situation. But it is equally significant that the organizational ombuds contributes to system change, in terms of prevention of future unfairness or providing better means of early intervention and effective remediation.”

      Wagner, Change Agent, supra para 16 at 111.

  • The ombudsman as a preventative mechanism

      Education

    1. As Wagner writes, “Educating a decision maker or respondent to become more sensitive to diversity, or to develop problem-solving skills, may be one of the more valuable contributions an ombuds can make to an organization.”

      Wagner, Change Agent supra para 16 at 104-105.

    2. According to Wagner, the teaching function may occur in various settings.The ombuds may work with individuals explaining policies, clarifying cultural differences and helping parties see the other side to the dispute. The ombuds might also plan training sessions for individuals or groups in conflict resolution techniques or negotiation skills. As Wagner expresses, the ombuds is routinely giving people information about policies and procedure and suggesting a range of options for the individual to consider. Moreover, “[w]henever possible and appropriate, the ombuds encourages and empowers the visitor to use self-help to solve his or her own problem”

      Ibid. at 104.

    3. According to Jacoby, the educative function should also be encouraged in classical ombudsmen. Jacoby suggests increasing awareness by trying to educate government employees and trying to modify their organizational cultures, even if this is not specifically mentioned in the ombudsman’s constituent statute. Jacoby also notes that interventions by ombudsmen are by nature educational, as an ombudsman’s recommendation for corrective action, or for changes in guidelines and procedures helps employees see problems and avoid them.

    4. Jacoby suggests that ombudsmen use opportunities to meet with officials to explain reports and recommendations the ombudsman has made, and that ombudsmen make use of the major issues that arise in their investigations to engage in discussion about corrective action. Ombudsmen can go further by setting routine meetings with officials or by producing publications for government employees on particular topics. Jacoby also suggests contacting organizations that are aimed at helping others to know their rights and recourses and asking those organizations to include the ombudsman on their list of referral services.

      Daniel Jacoby, “The Future of the Ombudsman” in Linda C. Reif ed. The International Ombudsman Anthology (Kluwer Law International: The Hague, 1999) at 36-37 [Future].

    5. According to Caiden et al., the mere presence of an ombudsman may serve to improve bureaucratic practice: “In bringing administrative malpractice or just sheer poor public relations to the attention of public authorities, the ombudsman promotes administrative reform. Its very presence in the machinery of government cautions public servants to behave properly lest they personally and their agencies find themselves the subject of a complaint and all that entails – confrontation, investigation, negotiation, unwelcome publicity and possibly government retaliation, professional disgrace and official disciplinary action.”

      Caiden et al, “The Institution of Ombudsman” supra para 4 at 8-9.

    6. Moreover, in making recommendations for systemic change, discussed above, the ombudsman is in essence seeking to prevent future complaints. As Owen writes: “In addition to helping resolve individual complaints, an ombudsman office can, over time, serve as a resource to government institutions in identifying recurring unfairness (which may not display an obvious pattern to the agency itself) and can advise on how to avoid it in the future.”

      Owen, Essential Elements, supra para 10 at 58.

    7. Moreover, as Wagner notes, many ombudsmen, as part of their mandate, may occasionally initiate change or make recommendations independently of a received complaint. For example, an ombuds may notice a routine violation of a policy, and may decide to undertake steps to improve enforcement. Or, he or she might find ambiguities in a new organizational policy and suggest clarifications in order to avoid anticipated complaints.

      Wagner, Change Agent, supra para 16 at 105-106.

  • The ombudsman as change agent:
    1. As expressed by Stieber, “[m]aking recommendations for systemic change is a function shared by all categories of ombudsmen.”

      Stieber, 57 Varieties, supra para 3 at 54.

    2. In relation to classical ombudsmen, Jacoby affirms: « On peut certes affirmer qu’un grand nombre de bureaux d’ombudsmans ont découvert ou redécouvrent la dimension collective des interventions, qui dépasse la plainte individuelle pour identifier les manifestations de maladministration qui correspondent à des hypothèses de dysfonctionnement administratifs systématique et y remédier. »

      Jacoby, Protecteur, supra para 2 at 24.

    3. According to Wagner, the making of recommendation for change is perhaps the most important and most overlooked function of the organizational ombudsman: “The organizational ombudsman has an obligation to look within each complaint for the possibility of a recurrence or pattern and to take steps to change the structure in order to prevent a similar pattern in the future.”

      Wagner, Change Agent, supra para 16 at 100.

    4. According to Rowe, “Research indicates that internal ombudsmen typically spend a quarter to a third of their time as internal management consultants, trainers and change agents.”

      Mary P. Rowe, “The Ombudsman’s Role in a Dispute Resolution System” (1991) 11(3) Negotiation Journal 353 at 357 [Dispute Resolution].

    5. Although the ombudsman is often viewed as a means of redressing maladministration, as noted by many authors, many of the complaints investigated by the ombudsman do not result in findings of wrongdoing on the part of the authority investigated. As noted by the Supreme Court of Canada: “On the other hand, he may find the complaint groundless, not a rare occurrence, in which event his impartial and independent report, absolving the public authority, may well serve to enhance the morale and restore the self-confidence of the public employees impugned.”

      B.C. Development Corp. v. Friedmann, supra para 5 at 460.

    6. Writing in 1984, Viktor J. Pickl, Director of the Austrian institution of ombudsman, Volksanwaltschaft, estimated that only one in ten investigations actually faulted the administration. As he explains: “But in the other nine cases, the ombudsman is still doing something. He explains to complainants why the official action was correct, even if it was misunderstood and a sense of injustice still lingers. It is as important to remove lingering doubt as it is to correct wrongdoing. In all investigations, the ombudsman is reducing friction between citizens and government.”

      Viktor J. Pickl, “Investigating Complaints: A Comment” in Gerald E. Caiden, ed., International Handbook of the Ombudsman: Evolution and Present Function (Greenwood Press: Westport, CT: 1983) at 92.

    7. Finally, as noted by Oosting, it is part of the role of the ombudsman to find ways to make sure that internal complaint procedures function more efficiently: “The better the government functions, and the greater the effectiveness of these internal complaints procedures, the less the ombudsman will have to do. But is it not precisely the task of each ombudsman to try to put himself out of a job?”

      Oosting, Global View, supra para 9 at 13.

Forum of Canadian Ombudsman