Ombudsmanship – Preliminary Thoughts on the Theory and

Practice of OmbudsmanPresentation to FCO Investigative Skills Workshop

January 22, 2012Toronto, Ontario

byGreg Levine

© Gregory J. Levine, 2012

Outline

• Introduction – Common Ideals and Threads; Preliminary Definitions; Brief Historical Sketch

• Types of Ombudsmen and their Mandates• Key Concepts and Operational Conundrums:

Independence, Impartiality, Confidentiality, Administrative Justice, and Fairness

• Effectiveness Issues – Resources, Fairness • Accountability – Reporting, Answerability,

Stewardship

Types of Ombudsmen

Ombudsmen may be grouped various ways and with various typologies:

• Organizational Hierarchy – Legislative and Executive/Organizational

• Conveyance of Powers – Legislation; Contract• Breadth of Mandate - General; Specialty• Method of operation – Investigative, Mediative,

Hybrid• Nature of Powers – Investigative powers;

Process Protections

Defining Ombudsmanship

• Ombudsmanship is the just reclamation of aggrieved human dignity through understanding and resolving of administrative problems by means of critical information gathering and the use of the redemptive powers of logic and persuasion.

Common Ideals

All ombudsmen seek to:• Behave compassionately, empathetically

and with decency• Engage others and their work fairly• Seek justice• Work with meaning and efficacy• Act with conviction and optimism

Common Foundations

• Trust• Legitimacy• An ombudsman without trust loses

efficacy; an ombudsman acting without legitimacy loses trust

Key Concepts

• Fairness• Independence• Impartiality• Confidentiality

Fairness and Administrative Justice

• Fairness – fair play (process), fair results (substance); process (no bias, right to be heard), substance (justice, equity)

• Administrative Justice – “justice at all levels of government” and “a means to attain justice, morally and legally defined in respect of governmental and administrative action”

(Levine, Law of Government Ethics – Federal, Ontario and British Columbia (2007), p.50)

Independence

• Freedom to do one’s work without coercion; in the ombudsman context, freedom to form opinions, conduct inquiries, report, recommend and settle matters free from interference and coercion

Ensuring Independence

• Conditions which promote independence – security of tenure, status of position, selection process

• Independence is never absolute • Having independence and using it are not

the same

Impartiality

• Free from bias as between complainants and complainants and institutions

• Free from bias as to nature and subject matter of complaint

• Having an open mind but not a blank one – must evaluate facts and assess situations within a framework of knowledge and understanding

Neutrality

• Non-alignment with parties – similar to but not the same as impartiality

Confidentiality

• Keeping confidences• Core element of ombudsmanship -

operating in a manner which protects information and uses and discloses it appropriately

• Core protection for those who encounter the ombudsman process but not an absolute protection

Ensuring Confidentiality

• Law – legislation, common law• Practice – securing records; establishing

privacy in investigative and mediative practices

Effectiveness

• Methods• Resources• Staff

Staff

• Larger operations must have staff besides the Ombudsman

• Deserve support and respect

Resources

• Resources Matter - never underestimate the obvious

• Adequate resourcing – finances, equipment, training are critical to an effective operation

Methods

• Investigation – informal/formal; ability to summons and use subpoenas depends on legislative authority; ability to gather information in the absence of legislative authority depends on policy, contract and common law.

• Mediation – focus for some ombudsmen, technique for others – use of depends on mandate and authority as above

Accountability

• Answerability• Stewardship

Answerability

• Answer for one’s conduct; report on operations

• Outline actions in cases; report to complainants, institutions

Stewardship

• Obligation to use resources prudently• Obligation to report on that use

Thank you

• Please feel free to comment or raise questions about this presentation – my e-mail is: greg.levine@bmts.com

• Please visit my websites online at: http://publish.uwo.ca/~glevine/GovtEthicsLaw• and http://www.govtethicslaw.ca (Note that this site is being reconstructed)