It’s Time to Elevate Societal Interests through an Ombudsman Process
We need to do something in the U.S. before our system of government falls part under the weight of fraud, corruption, waste, mismanagement, and indifference to the public good. I recommend adopting an ombudsman process. The ombudsman has been around for a long time. In 1808, the Swedish Parliament first used the term “Ombudsman” for the office of Justitie-Ombudsman. The office functioned as a defender of the people in their dealings with government. It’s been used in many ways with many purposes since then but I use the term as a trusted person who would function independently of any political or government office with reporting responsibilities only to the President of the U.S., a newly formed internal Congressional Ethics Oversight Office, and the independent judiciary. The ombudsman would seek the blessing of a board of trustees within the newly formed, independent Office of the Ombudsman, to take action based on citizen complaints.
I will return to specific proposals later on but first some examples of how an ombudsman has been used and designated responsibilities are in order. In the United Kingdom, an ombudsman is charged with the handling of concerns about national government and is more formally referred to as the "Parliamentary Commissioner." In some countries an Inspector General may have duties similar to or overlapping with an ombudsman appointed by the legislature. In the U.S., an Inspector General is an investigative official in a civil or military organization such as the Office of Inspector General for the Department of Defense or Army Inspector General.
An Ombudsman should be a designated neutral person who provides confidential assistance for resolving citizen complaints. The ombudsman would be independent of any other organizational investigative process such as the existing Office of Congressional Ethics, an independent, non-partisan entity that is charged with reviewing allegations of misconduct against Members, officers, and staff of the United States House of Representatives and, when appropriate, referring matters to the House Committee on Ethics. This body rarely acts and it’s only after a questionable political process has unfolded. In my view the ombudsman should act as an“Über”-investigator. The German word is usually translated as over, above or meta.
In Singapore, the ombudsman offers whistleblowers an avenue to turn to and assures them of proper investigations. One problem in the U.S. is whistleblowing procedures in existing laws establish cumbersome and time-consuming processes that oftentimes do not led to ethically-justified outcomes and fail to create real reform. A good example is the whistleblowing provision of the 2002 Sarbanes-Oxley Act that provides for the reporting of whistleblowing complaints to OSHA in the U.S. Department of Labor. It considers alleged violations of mail, wire, bank, or securities fraud; violations of rules or regulations of the SEC; or federal laws relating to fraud against shareholders of public companies. OSHA’s role is to investigate whistleblower complaints of retaliation. A study of the success of OSHA in the first three years after the statute's enactment indicated that 491 cases were filed with OSHA; 361 were resolved and OSHA found for employees only 13 times, a win rate of 3.6%. On appeal from 93 OSHA decisions, administrative law judges in the Department of Labor found in favor of 6 employees, a win rate of 6.5%.
The objectives of the ombudsman process in the U.S. should be to investigate allegations made by citizens and citizen groups about:
- Corruption by members of Congress including influence-peddling and bribery
- Corruption in any agency of the U.S. government
- Mismanagement of public resources that borders on gross negligence or fraud such as the massive fraud that currently exists in the Medicare program
- Corruption in the judicial system including accepting bribes and other forms of payments to achieve a desired legal outcome
- Whistleblowing complaints filed under federal laws such as the Dodd-Frank Financial Reform Act and Sarbanes-Oxley
Two areas where the ombudsman process would not replace existing federal investigatory bodies are allegations of bribery under the Foreign Corrupt Practices Act (FCPA) and claims under the federal False Claims Act. In both cases the allegations are investigated by the U.S. Department of Justice (DOJ). The whistleblower lawsuits under the False Claims Act that allows the federal government to recover monies from contractors who have knowingly submitted a false or fraudulent request for government funds have yielded relatively good results given the arduous task of investigation. The latest annual recoveries under the act show continued progress: $3 billion for the fiscal year 2010, $2.4 billion for 2009 and $1.34 billion in 2008. All told, the government recently estimated that it had recovered nearly $29 billion since Congress revised the False Claims Act in 1986. The international governmental nature of the FCPA claims warrants continuation of U.S. Department of Justice adjudication process. The DOJ seems to be initiating actions against offending companies more aggressively. In the first 8 months of 2010, the U.S. Government levied over $1.5 billion in FCPA fines – the most ever in its 33 year history.
I don’t believe an ombudsman should be able to review court decisions or the conduct of organizations such as the Police. This is best left to existing processes. For whistleblowing complaints, an effort should be made to first determine whether the complainant made a good faith effort to resolve the matter internally. Most important, the chosen investigations must address issues of public interest and the integrity of our systems of governance under the Constitutionally-mandated rule of law.
According to the International Ombudsman Institute located in Vienna, Austria (see: http://www.law.ualberta.ca/centres/ioi/), more than 100 countries have ombudsman offices of one kind or another. In the U.S., virtually all federal government agencies have such processes as do an increasing number of municipalities including Portland, Oregon and Anchorage, Alaska. The United States Ombudsman Association is the national organization for public sector ombudsman professionals. Founded in 1977, USOA is North America's oldest national ombudsman association with members from ombudsman offices in local, state, and federal governments, and affiliated ombudsman offices.
The following four Principles should guide the Ombudsman in forming an independent opinion as to whether the act or decision warrants investigation:
- Does the act appear to be contrary to law both in legal form and/or in spirit;
- Was the act or decision unreasonable, unjust, oppressive or improperly discriminatory;
- Did the complainant make a good faith effort to resolve differences including the alleged harmful effects of the act using internal or other legal means (claims under the False Claims Act and FCPA are exclusively reserved for the DOJ)
- Does the act affect more than just one individual’s well-being, but all of society
Opinions should be formed in accordance with the International Ombudsman Association’s (IOA) ethical principles including: (1) Independence; (2) Neutrality and Impartiality; (3) Confidentiality; and (4) Responsible Action in accordance with established Standards of Practice, which are based on specific ethical principles. For more information on the IOA Code of Ethics or Standards of Practice please go to: www.ombudsassociation.org.
There is much to consider before adopting a federal ombudsman process in the U.S. My goal has been to put the idea out in the public forum for debate, inform interested parties about the process, and evaluate how the process can improve governance in our country. I believe we are at a crossroads as a nation. Our systems have failed us for way too long. Corruption is endemic in our political and corporate systems. The pursuit of self-interest has replaced any concern for how it affects society as a whole. We need to seriously consider a major shift in our philosophy as a nation of solely protecting individual rights to protecting individual rights within the broader context of societal good.
Blog by Steven Mintz, aka Ethics Sage, May 11, 2011