Read Chuck Howard's Ombuds Day Keynote Address

IOA Executive Director Chuck Howard gave the keynote address at the Ombuds Day event held on 10 October 2019 in Washington DC. Read on for the full transcript of Chuck's speech.Chuck Howard Speaking at 2019 Ombuds Day in Washington DC

This is the second year of Ombuds Day celebrations. Last year, the inaugural Ombuds Day event was held here in Washington to an overflow crowd with a waiting list. This year, there are three main Ombuds Day events—here, in Chicago, and in Boulder, Colorado—as well as an Ombuds Day event in Connecticut on October 15th, with the delay necessitated by lack of space for it on the 10th. We have several state proclamations—from the governors of Colorado, Maryland, Connecticut, New Mexico, North Carolina, Texas and Virginia, as well as proclamations from the Mayor of Washington, D.C. and from at least 8 local governments. There are also numerous events being hosted by ombuds offices at companies, universities, and other organizations.  I think this is remarkable progress for only the second year, and I hope next year’s celebrations will be even bigger and more numerous.

Before I turn to my main remarks, however, l would like to give a bit of background on what the ABA DRS Ombuds Committee is, what it has tried to accomplish, and how Ombuds Day celebrations came about.
I don’t know when the first ABA Ombuds Committee was organized, but one existed in the early 2000s, as it was very instrumental in helping to achieve ABA adoption of two important ombuds resolutions by the ABA House of Delegates in 2001 and 2004. These resolutions help standardize the terminology for the different types of ombuds programs—classical, advocate, and organizational. They also set forth standards for the creation and operation of these programs. These have been foundational documents in the growth of the ombuds field in the United States. this is remarkable progress for only the second year, and I hope next year’s celebrations will be even bigger and more numerous.

2019 Ombuds Day Washington DC Event Participants
Somewhere along the way, the Ombuds Committee ceased to function or exist, and by 2014 the Dispute Resolution Section Council asked me to see if I could help revive it,  so I became the initial chair for a few years, but have since passed that leadership role along to others who have done an excellent job of continuing the good work of the committee, including the development of this event, which was the brainchild of Chuck Crumpton, a member of the Section Council. Our goal from the beginning was to find a way to unify and promote the various types of ombuds programs in ways that emphasized their common attributes rather than their differences and to publicize the important services they offered to a public that often had no idea what this strange name meant. I believe this Committee has done just that with a variety of programs, including writing numerous articles each year on various ombuds-related topics, making presentations at various conferences, developing law school teaching materials for better education on the types and evolution of ombuds programs; drafting and ultimately achieving adoption of another ABA Resolution in 2017 that urges ombuds programs to adhere to generally accepted standards of practice; and helping to prompt an extensive study undertaken by the Administrative Conference of the United States (known as “ACUS”), which is the leading best practices administrative agency of the federal government, which adopted Recommendation 2016-5 that urged Congress and the President to make greater use of federal agency ombuds programs that comply with generally accepted standards.

With our program tonight, we have several different types of ombuds programs for you to learn more about, and I hope you will be able to visit with them to learn what they do and how they do it. But I would like first to give you some general observations—derived from my almost thirty years of representing organizational ombuds programs—which I think explains why I believe this function is so important for people and for our governmental, civic, and business institutions. In 2016, I wrote an article for the Dispute Resolution Section Magazine’s special edition on ombuds, entitled “A Broader View of Dispute Resolution” in which I described mediation, arbitration and what is commonly thought of as alternative dispute resolution (ADR) as essentially outgrowths of the English common law adversarial system, in which each side of a dispute has skilled advocates to assert its position and interests, and from that dialectic the truth or a resolution emerges. By contrast, the Swedish concept of an ombudsman is based on a very different idea: that organizations—which, at the time meant the government—should function lawfully and effectively and that a skilled agent or ombudsman could facilitate that process. In pursuit of this mission, ombuds, as we now often refer to them, help individuals with difficulties or issues with or within the organization and at the same time help the organization do what it is supposed to do and function effectively. This is the broader view of ADR that I was referring to. The ombuds thus has both a responsibility to help people with their problems or concerns and a broader organizational, governmental, or societal responsibility to help their organizations function more effectively. And while I am most familiar with the organizational model, I think this principle applies to all of the types of ombuds.

Based on the research I have done, I have also written that I believe that the modern concept of ombuds in the United States can be traced back to an administrative law professor, Kenneth Culp Davis, who wrote an article in the University of Pennsylvania Law Review in June 1961. In the second paragraph of his article, he indicated that he had spent the preceding year (presumably a sabbatical) traveling the world looking for the best ideas to help solve problems with administrative process, and the one he was most intrigued with was “the institution of the Ombudsman in the Scandinavian Countries.” He then went on—and quite prophetically I believe—to say the following:

“The idea, coupled with American ingenuity to adapt it to our institutions, may have considerable potentiality for our various governments, federal, state, and local.”

I think that was a vast understatement, for he certainly did not consider the adaptation of the ombuds concept to non-governmental institutions. But the widespread creation of ombuds programs in non-governmental contexts such as business, universities and other organizations, has truly been a remarkable development.

This broader view of ADR and the evolution and expansion of the ombuds idea over the past almost 60 years has prompted me to believe that we need reframe the case for why every major governmental, civic, or business organization could greatly benefit by having an ombuds function. I believe that it is more than just another means of ADR adapted to the public, to workers inside a company, or to members of a university community or some other organization.

Just as our government is based on deeply held constitutional principles, I think that American society and culture are based on fundamental principles which are often unarticulated assumptions about how we expect major institutions in our society to operate. While these assumptions may have existed in the United States, I think similar expectations have spread throughout the world as world cultures have become increasingly intertwined. The problem is that there is not a written constitution or other touchstone document o articulate and enshrine these principles—but I think they are no less fundamental and important than the constitutional principles on which our systems of government are based. Among these principles are three in particular that I would like to identify: fundamental fairness—the deeply held and almost subconscious assumption and belief that our society and its institutions should operate fairly; procedural fairness—the belief that the conduct of business and decision- making by our institutions and their leaders should not be arbitrary but that fair processes should lead to predictable results; and checks and balances—the belief that constraints on power are necessary to help restrain its arbitrary exercise.

When I recently went back to Professor Davis’ article to prepare this presentation, it came as no surprise to me that he had anticipated this context and these principles and gave voice to them as he was explaining the potential role that an ombuds could serve in America. Under a heading entitled: “Some American Fundamentals in World Perspective” this is what he had to say:

All over the world the growth of positive government has surged upward during the past quarter-century or more, with a consequent multiplication of dangers from improper use of governmental power. The first line of protection everywhere lies in attempts to provide able and conscientious personnel striving for the highest quality of performance. If we only achieve this, many of our other problems would be solved in whole or in part. But experience both in America and elsewhere shows that achievement in this respect is likely to be uneven and that the results are at best shot through with imperfection. The second line of defense is procedural safeguards. Our American achievement in the development and refinement of procedural safeguards is a great and significant one—probably by a wide margin the best in the world. Our weaknesses may be that we tend to push some safeguards much too far, that is, to overjudicialize, and we have neglected potential safeguards that are designed to assure effective and efficient administrative action, for our focus has been almost entirely upon safeguards against unfairness. For a third line of protection, we rely heavily upon the principle of check. This is the system under which anyone who exercises power is subject to check by someone else.

In the years since 1961, Professor Davis’s realistic skepticism about the imperfection of people and institutions has been repeatedly validated. My belief is that as long as people are involved—which is to say always—our institutions will fall short of perfection simply because they depend on people and people are not perfect. Professor Davis’s observation that Americans also “overjudicialize,” as he called it, is also still true, and in fact even more true, in ways that he could not possibly have imagined, to the dismay of much of the rest of the world.

And finally, his observation that we tend to overlook other safeguards that help assure effective administration is also true.

It is not that we have overlooked all other potential safeguards; it is just that over the years, it has become more obvious that there are significant limitations to their ability to help us and our institutions fulfill our commitment to these fundamental principles. For example, while unions once were a significant bulwark to help achieve fairness, procedural fairness, and a check on power, the atrophy of unions in our economy has rendered them all but irrelevant for most people, with a sizable segment of our workforce now not even considered as “employees.”

We also have over the years developed specialized functions such as compliance, Human Resources, Title IX coordinators, and similar formal channels to permit our institutions to self- police, but these are— in both perception and reality— in effect, the “police.” If these were the only means for people to address misconduct or maladministration which will inevitably occur at some time in some place, we have to ask ourselves just how likely is it that people will broadly use these functions. Just as people often fail to report their concerns to the actual police—because after all, they are the police—I think that the utility of these functions, while necessary and extremely valuable, is limited in the way they can deal with many issues.

Likewise, while there are hundreds of laws to protect whistleblowers, but it is widely known that once someone breaks rank to lodge a whistleblower complaint, they are vulnerable to retaliation, whether it be official or merely peer retaliation, and other severe adverse consequences.  There are various studies that back this up this conclusion. Rather than focusing only on how to protect whistleblowers, wouldn’t it make more sense also to find ways to surface issues without forcing someone to become a whistleblower? And wouldn’t it make more sense that we look for ways to address these concerns without “over judicializing” them as Professor Davis would put it?

This is where an ombuds comes in. While the justification for an ombuds program will vary somewhat depending on the type of ombuds involved, let me address here what I know best— the organizational ombuds. Programs created to comply with generally accepted standards are based on the principles of independence, impartiality, confidentiality, and informality. One can go to these confidential offices to have an off-the record conversation without putting the organization on notice of a claim and receive information and guidance on options for addressing an issue from a knowledgeable person. Ombuds are deeply concerned about fairness and fair process. Their day-to-day task is usually assisting an inquirer with an immediate issue—sometimes one that might appear minor to the outside world but sometimes not—they frequently learn about a significant matter or issues that would not otherwise have been raised through one of the other channels I have mentioned. One way to describe their value is that they provide a safe and confidential place for these communications before the inquirer has to make a decision on what to do. And while ombuds do not reveal these confidential communications except in narrow and urgent circumstances, they are able to provide feedback generally to their organizations or the public about systemic issues. It is just this type of systemic input which can serve as a check on misconduct or maladministration by people in their organization.

It is easy to speak in such generalizations but let me give you a couple of simple—but powerfulactual ombuds examplesfrom the many I could provide—to illustrate these point. As you listen to these please ask yourself these questions:

  • If it were not for the confidentiality available through a conversation with the ombuds, would this issue have been raised?
  • How important was it to the inquirer that the ombuds offered a safe way to surface an issue without disclosing who had raised it?
  • Did the actions of the ombuds promote the principles of fairness and fair process?
  • Was the ombuds able to provide tangible help to the inquirer?
  • Did the result of these examples promote the real interests of the organization or the public?
  • Was the ombuds able to serve as an effective “check” on the abuse of power?

Here is an actual example in the organizational ombuds context:

A secretary to a senior vice president of an organization contacted the ombuds with a concern over whether her boss was falsifying his expense reimbursement reports. She wasn’t sure if she was correct and was not willing to report this issue to any of the formal notice channels, because, as she explained, only she and he had access to them prior to their submission. After consulting with the ombuds, she agreed with one of the options offered and allowed the ombuds to contact the internal audit department to suggest that they do an audit of the expense reports for a limited period of all of the vice presidents over a certain level, thus insuring that it would both seem like a random event and that there would be several people encompassed by the audit so that it would be highly unlikely that anyone could ascertain where the impetus for the audit might have come from.

When I gave a presentation with one of the people who was involved in this actual case, he gave this example and commented that the audit actually identified three senior people who were defrauding the company and they were all terminated.

And here is an actual example of an ombuds in an externally facing classical context:

The City Ombudsman of Portland Oregon examined a pattern of complaints by city residents and discovered substantial barriers to administrative justice at city departments, including permit denials, water shutoffs, vehicle tows, and property maintenance violations. Acting on the Ombudsman’s recommendations, the City Council enacted reforms that made the administrative appeal process more accessible and more affordable to residents.

I believe that these examples demonstrate a broader view of ADR and one in which the interests of the inquirer and the organization or the public are well served. They embody a commitment to the principles of fairness, fair process and checks and balances. And they accomplish all of this in a way that is accessible and approachable for people and yet well serves the organization and the public interest. Moreover, they do this without “overjudicialing” the process.

I feel certain that you will hear more examples from the ombuds who are here tonight about how they work, and I hope that you, as am I, are inspired by what they can do for people and for promoting fairness and fair process and for serving as a check on power.

Thank you.

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Comments on "Read Chuck Howard's Ombuds Day Keynote Address"

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Ronnie Thomson - Wednesday, October 16, 2019

Excellent! I wonder what ComCom is thinking regarding where/how to reproduce this? Direct mail piece to leaders of ethics programs, law firms, university presidents? Hum... I am not a Marketer but I do wonder how to get Chuck's words out.

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