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The American distortion of the ombudsman concept and its influence on Canada.

Canada has been greatly influenced by American versions of the ombudsman concept. This is so because in the same year, 1967, the state and provincial legislatures in United States and Canada began creating independent ombudsman offices to handle complaints from citizens against bureaucratic actions, as an important new addition to the armoury of democratic government.

It has been said that the United States is the land of faddism. So when in 1966 Walter Gellhorn published Ombudsmen and Others, his definitive comparative study of complaint-handling by governments in various countries, and concluded that the ombudsman systems in Sweden and Finland were best, "ombudsman" suddenly became the new popular buzzword. Time magazine, in reviewing Gellhorn's book, said that the word was so new in English that it hadn't yet appeared in Webster's dictionary. But Time was red-faced when it received letters from Funk and Wagnall and Thorndyke-Barnhard noting that the word had already been added to their dictionaries.

Very quickly four American states (Hawaii, Nebraska, Iowa, and Alaska) and a number of local governments created ombudsman offices, which, like the offices in the Canadian provinces, have continued with great success to this day. But the idea soon became distorted by a misapplication of the word to mean any office set up to receive complaints regardless of whether it was independent of the organization being complained against. Bernard Frank, a prominent American advocate of the concept, summed up the situation by saying Americans loved the word but not the concept. Thus, very soon heads of federal and state departments and agencies appointed their own officers to handle complaints and called them ombudsmen. These are now known as executive ombudsmen (as opposed to the original legislative ombudsmen, who were created by and are agents of the legislature).

This large number of executive ombudsmen naturally posed a problem for the United States Ombudsman Association (USOA), which had been founded as an association of legislative ombudsmen. Some executive ombudsmen were anxious to appear more legitimate by joining the association and patterning themselves as far as possible on the genuine article. The association, wishing to accommodate them and perhaps influence them to become more independent, invented for them the category of associate member (non-voting). But the executive ombudsmen kept knocking at the door, until finally the USOA admitted them as full members and in the year 2000 gave them equal representation on its board of directors. Was this a mistake? It certainly helped to legitimize the executive ombudsmen, and the USOA now faces the danger of being captured, or at least heavily influenced, by the vested interest of the executive ombudsmen.

The university ombudsmen

Because of the popularity in North America of the idea that grievances ought to be remedied in a democracy, the second distortion of the original concept came with its expansion to universities and then to other non-governmental entities such as hospitals and newspapers. At first the proponents of an ombudsman for university students tried to follow the original concept of independence by having the ombudsman created by a bylaw of the board of governors or resolution of the academic senate (as the closest equivalent to a legislature), and having the students share equally in the ombudsman's appointment and budget. For example, this was the case at Carleton University, where the powers and procedures of legislative ombudsmen were taken as the model.

But soon in both the United States and Canada university ombudsmen were appointed by the president, who usually chose a member of the faculty, without any participation by the students. The guarantee of independence was lost, and these ombudsmen could easily be suspected of being in in the pocket of the president. However, the classical model has exerted a strong influence on them, and many have succeeded in establishing a tradition of independence. By the year 1996 there were at least eighty-three university ombudsmen, of which only thirteen could be said to be clearly legislative--eight in the United States and live in Canada.(1) The net result was that the distinction between legislative, executive, and other ombudsmen was obscured, and the concept became further distorted. University ombudsmen formed their own organizations, and set the pattern for the use of the word in the quasi-governmental and private sectors.

The university adoptions came mainly in the early 1970s, just about the time the feminist movement was at its height. So another strange result was the distortion of the word itself. By then it had become so popular with the press and public in modern democracies that often it had replaced "homegrown" titles, even in legislation. For instance, in New Zealand's law of 1962 the officer's exact title was "Parliamentary Commissioner of the Administration (Ombudsman)," but soon was always called the ombudsman. So by the time the feminist movement hit the universities in North America, the word was already well established in English. Yet the movement claimed that it was not gender neutral, and in the university schemes altered it indiscriminately to ombudsperson (plural, "ombudspeople"), ombud, ombuds (plural, "ombudses'), or even ombudsbuddy or ombuddy. Mysteriously, some maintained that the plural should be "ombudsmans," to avoid the ending "... men," or that the singular of the word was more acceptable because it was Swedish.

By then there were several legislative ombudsmen who were women, and they refused to agree, arguing that the word was so well established in law and language that it was gender neutral. To them, changing it to ombudsperson was as unnecessary as changing the word woman to woperson, or changing the British phrase for speedbump from "sleeping policeman" to "sleeping policeperson." Yet the feminist usages have continued in the non-governmental sector, and in fact were greatly expanded by the founders of the Corporate Ombudsman Association in its literature. The casual way in which the word has been altered has contributed to its disrespectful, "dumbing-down" usage. It even tortures English grammar by using the singular for the plural, despite the fact that the regular plural form is very useful as a linguistic device to avoid the awkward "her/his" construction in the singular.

The corporate ombudsmen

The greatest distortion of the classical model in the United States has been the appointment of so-called ombudsmen by business corporations to settle disputes within the corporation (though sometimes they also deal with customer complaints). This development mushroomed so fast that in 1988 Mary Rowe, one of its advocates, estimated that there may have been as many as eight thousand corporate ombudsmen, often called by another name, such as liaison officer or internal mediator. (2) The change came about as part of the sudden appearance and popularity of the dispute resolution movement. In effect, the movement hijacked the word ombudsman for its own purposes. It quickly developed its own ombudsman jargon, involving a whole system of dispute resolution within the corporation rather than grievances from the outside public, as with the classical ombudsmen. The organizers of the first corporate ombudsman conference defined ombudsman vaguely "as one skilled in dealing with reported complaints to help achieve equitable settlements."

The Corporate Ombudsman Association was so successful that within eight years it decided to extend its scope by changing its name to The Ombudsman Association (TOA). It used the term "organizational ombudsmen" to mean all non-legislative ombudsmen, and made them all eligible for at least associate membership. But this was a bad mistake. In the first place, organizational ombudsmen is meaningless because legislative (like executive) ombudsmen are part of an organization and are thus also "organizational." Worse still, it puts all other types of ombudsmen--executive, university, and other non-governmental--in the same bag as corporate ombudsmen.

The TOA'S code of ethics and standards of practice are both aimed at corporate ombudsmen who deal primarily with internal employees and disputes, without recognizing that the circumstances and objectives of other types of ombudsmen are very different. This difference is glaringly true of the executive ombudsmen because they are governmental. Unlike corporations, whose customers can take their trade elsewhere, the state has a monopoly on the use of power, including the power of life or death over its members. Therefore, fairness, justice, and the prevention of wrongdoing are paramount to both the ombudsman and the citizen. This requires obvious neutrality from ombudsmen who must not only be, but clearly appear to the complainant to be, independent of the organization being complained against. Hence the executive ombudsmen ought to have their independence protected by legislation rather than being treated as equivalent to corporate ombudsmen. Yet the old Corporate Ombudsman Association seemed to gobble them up under the new name without a trace of indigestion. If TOA didn't actively welcome them into its ranks, its very existence, with its insistence that ombudsmen could achieve neutrality without legislative protection, tended to legitimize them, even to legislators, who therefore did not see the need to make them legislative. Moreover, calling itself The Ombudsman Association implied that there was no other. Yet the United States Ombudsman Association, which was founded to represent the legislative ombudsmen, had been in existence for fifteen years.

In recent years TOA has vigorously pursued an international membership. On its website it boasted that 20 per cent was international. The website offered information in seven languages and encouraged foreign members to attend its conferences and courses. This development had serious implications for the venerable International Ombudsman Institute (IOI), which has represented the legislative ombudsmen internationally since 1974. Headquartered at the University of Alberta, it has an enviable reputation for the excellence of its publications. Yet it operates on a shoestring. TOA was supported by private corporations, which also paid handsomely for employees' course fees. It was flush with money by comparison. In the year 2006 the University and College Ombuds Association joined forces with TOA as the International Ombudsman Association. Because it will soon dominate the international scene, this new organization poses a real threat to the IOI and the classical concept.

The American Bar Association

Sadly, the influential American Bar Association (ABA) has recently aided and abetted the distortion described above by reversing its stand in 1969 that the ombudsman is governmental and the ideal is legislative. With the adoption in 2001 of its "Standards for the Establishment and Operation of Ombudsman Offices," it has redefined the meaning and nature of an ombudsman to favour the characteristics advocated by TOA for corporate ombudsmen, and to include all kinds of complaint handlers who choose to call themselves ombudsmen. To do this, it had to dilute and generalize its definition so much that it became vague and virtually meaningless. It did this despite the opposition of the United States Ombudsman Association, the Canadian Ombudsman Association, and leading scholars of the concept. In fact, one is tempted to say that, with the ABA'S adoption of the new standards, its 1969 gold standard had suddenly become dross.

Thus the premable to the standards opens with this vague definition: "Ombudsmen receive complaints and questions from individuals concerning people within an entity or the functioning of an entity. They work for the resolution of particular issues and, where appropriate, make recommendations for the improvement of the general administration of the entities they serve." (3) A main problem with the rest of the standards is that they lay out a number of essential requirements of an ombudsman and then inconsistently say either that ombudsmen should aspire to meet these requirements or that there are types of ombudsmen who need not meet them. For instance, after stating that ombudsmen must be independent and neutral, they say that ombudsmen can be advocates. To the classical ombudsman, "advocate ombudsman" is an oxymoron. They say that all ombudsman records are confidential, yet classical ombudsmen must be able to publicize government wrongdoing. They say that ombudsmen must not address issues pending in judicial or administrative proceedings, yet the laws for classical ombudsmen do not prohibit them from doing so.

Worse still, the standards define a classical ombudsman as "any public sector ombudsman who receives complaints from the public or internally." This mistakenly includes executive ombudsmen. And they provide that only ombudsmen with jurisdiction over two or more agencies should be created by law. Yet many specialty ombudsmen for single agencies have been created by law; in fact, in the United States there are twice as many as there are general ombudsmen. (4) Also, the classical ombudsmen's power to investigate so as to get at the files and facts is one of their main functions, and one that certainly distinguishes them from dispute resolution practitioners. Yet the standards list it as only one of multiple, optional functions. Most worrying of all, rather than asserting that independence from the agency being complained against is an essential characteristic of an ombudsman, the standards recognize that ombudsmen who are part of an agency cannot be truly independent by telling them they should aim to be neutral.

Unfortunately, in July 2005 the Coalition of Federal Ombuds, consisting of both legislative and executive specialized ombudsmen for federal agencies, decided to adopt the new ABA standards, along with additional guidance notes for federal offices. Since most of the coalition's members are executive ombudsmen, there is little hope that it can be persuaded to adopt instead the USOA'S recently revised standards, which still accord with the classical legislative concept.

This is not to say that the hundreds of executive governmental and university ombudsmen and the thousands of corporate ombudsmen in North America are not doing a tremendous job of resolving minor complaints and disputes within organizations. But it is to say that in calling them ombudsmen we have downgraded the original concept of an independent, fearless official fighting to remedy government wrongdoing against helpless, hapless citizens. The fact that there are so many other types of ombudsmen with less demanding requirements obscures the importance of having absolutely independent ombudsmen in both the public and private sectors for the well-being of democracy.

Influence on Canada

Since nearly all aspects of American culture influence Canada, it is not surprising that all these distorted extensions of the basic ombudsman concept have had their counterparts in Canada. Thus the ombudsman idea here was so popular that, besides the early adoptions of the scheme by all of the provincial governments except Prince Edward Island, and by several cities, the idea was quickly extended to specialty ombudsmen for federal departments and services, including jails, the armed forces, police, protection of privacy and language, and access to information, as well as public and private institutions such as universities, hospitals, and newspapers.

At first efforts were made to ensure the independence of the ombudsmen. For instance, the federal government passed a special law, the Access to Information Act, which set up an independent ombudsman-like information commissioner to say whether requests for government information should be granted. But soon little attention was paid to the essential requirement of independence, and so executive ombudsmen began to be appointed by federal departments, universities, and business corporations, as in the United States.

Similarly, the Canadian women's movement was more interested in the seeming "maleness" of the word than in the independence of the office. So the university feminists began insisting on one of the American variations of the spelling of the word. Then the Canadian Ombudsman Association, which had been formed by the general and specialty parliamentary ombudsmen, became outnumbered by their own growing staffs and by the other types of ombudsmen that were being appointed. So in 2001 they decided to disband and the classical ombudsmen reorganized themselves into the smaller Canadian Council of Parliamentary Ombudsman. At the same time, the growing number of executive, university, and private-sector complaint officers decided to form themselves into the Forum of Canadian Ombudsman as a counterpart to the American TOA, and are likely to join the International Ombudsman Association instead of the International Ombudsman Institute. Note the influence of the feminist movement by the silly use of the singular for the plural in the new Canadian titles to avoid the word-ending '... men.'

What should be done?

Since the distortions of the classical concept are already well entrenched in the United States, and to a lesser extent in Canada, there is no longer any use trying to restrict the use of the word ombudsman to the legislative scheme. A recent survey by this author of several of the main North American dictionaries reveals that the second vague meaning of the word has already crept into two or three of them. Thus the second edition of the Canadian Oxford Dictionary gives this as the second meaning: "2. North America: an official within an institution who investigates complaints from employees, students, newspaper readers, etc." The various types of complaint-handlers now using the word are so different that we should be careful to distinguish them from. one another by the use of an appropriate adjective (for example, "internal" or "workplace" ombudsmen), so as not to confuse them with the preferred legislative model. As for the word itself, the Council of Parliamentary Ombudsman should stand their ground and change the singular in their title to the plural. They should also ask the Forum of Canadian Ombudsman to stick to the classical usage by changing their title to the plural.

More important, steps should be taken to restore the classical concept to its former lustre. The key ingredient of the classical model's success is its prescription by law, always with provisions designed to ensure its independence. All other types of ombudsmen should emulate this model as closely as possible. For instance, the federal specialty ombudsmen, as the Canadian Ombudsman Association has done, should lobby the federal government to create a general ombudsman plan for the whole federal administration, like Australia's, not just selected departments and agencies. This could be done by creating an ombudsman commission with jurisdiction over all federal departments and agencies, and by appointing the existing specialty ombudsmen as commissioners and adding other departments and agencies to their duties. Similarly, municipal executive ombudsmen should lobby their provincial legislature or city council for their offices to be established with a law or bylaw. University, school, hospital, other institutional and corporate ombudsmen should similarly lobby their board of governors or directors for a bylaw setting up an independent office, so as not to be subject to the influence or whim of the mayor, president, or chief executive officer. Besides infernal ombudsmen, corporations should appoint ombudsmen for complaints from their customers, as the Canadian banks have done.

However, the Canadian banks have recognized that an ombudsman appointed by a single bank cannot be regarded as truly independent. So in 1996 the Canadian Bankers' Association set up an independent ombudsman to hear appeals from the individual banks. There was already a precedent for such a system in other advanced countries, including Britain and Australia. The Canadian banking scheme was so successful that in 2002 it was emulated by the main associations of firms in the financial and insurance industries, which later joined the banking scheme under the same ombudsman.

This system of an ombudsman for a whole industry, called an industrial ombudsman, should be extended further, either by the industrial associations themselves or by legislation making it mandatory. Such a system is also needed for the professions. Although the legal, judicial, medical, and other professions usually have internal systems for hearing complaints, like the police they are notorious for protecting their own, and need an independent ombudsman chosen by a body with at least a majority from the outside public.

These reforms may seem far-reaching, but they are necessary if Canada is once again to become a leader in ombudsmanship.

Bibliography

Anderson, D.R., and D.M. Stockton. 1990. Ombudsmen in Federal Agencies: The Theory and Practice. Washington, DC: Administrative Conference of the United States.

Angrick, William P. 2004. Report of Vice-President, North American Region, International Ombudsman Institute. Conference at Quebec City, Canada.

Caiden, Gerald E., ed. 1983. International Handbook of the Ombudsman. 2 vols. Westport, CT: Greenwood Press.

Farrell-Donaldson, M. D. 1993. "Will the real ombudsman come forward?," in Linda Reif, M. Marshall, and C. Ferris, eds. The Ombudsman. The Hague: Kluwer Law International, pp. 65-75.

Hill, Larry B. 1997. "American ombudsmen and others; or, American ombudsmen and 'wannabe' ombudsmen." Address at the 1997 Spring meeting of the American Bar Association Section of Administrative Law and Regulatory Practice, Washington, 18 April 1997.

Kimweri, M. G. J. 1993. "The effectiveness of an executive ombudsman," in Linda Reif, M. Marshall, and C. Ferris, eds. The Ombudsman. The Hague: Kluwer Law International, pp. 37-64.

Meltzer, Leah. 1998. "The federal workplace ombuds," Journal on Dispute Resolution 13, no. 2, pp. 549-609.

Reif, Linda, ed. 1999. The International Ombudsman Anthology. The Hague: Kluwer Law International.

--2004. The Ombudsman, Good Governance and the International Human Rights System. Leiden: Martinus Nijhoff.

Reif, Linda C., Mary Marshall, and Charles Ferris, eds. 1993. The Ombudsman: Diversity and Development. Edmonton: International Ombudsman Institute.

Robertson, John F. 1993. "Protection of the name 'ombudsman,'" Occasional Paper No. 48. Edmonton: International Ombudsman Institute.

Rowat, Donald C. 2003. "The new private-sector ombudsmen," Policy Options, November, pp. 46-48.

Rowe, Mary P. 1991. "The ombudsman's role in a dispute resolution system," Negotiation Journal, October, pp. 353-61.

Notes

(1) Donald C. Rowat, "A Worldwide Survey of Ombudsmen," Occasional Paper No. 60 (Edmonton: International Ombudsman Institute, 1997), tables 5 and 7.

(2) Mary Rowe, "Foreword," in J. T. Ziegenfuss, Organizational Troubleshooters: Resolving Problems for Customers and Employees (San Francisco: Jossey-Bass, 1988).

(3) American Bar Association, Standards for the Establishment and Operation of Ombudsman Offices (2001).

(4) Rowat, "A Worldwide Survey," tables 1 and 5.

The author is professor emeritus of Political Science, Carleton University, Ottawa, Canada; editor of The Ombudsman (1965, 1968), and author of The Ombudsman Plan (1973, 1985). This essay is based on a much longer comparative one that will appear in Argyriades, Dwivedi, and Jabbra, eds. Public Administration in Transition: World Perspective (London: Cass, 2007). Professor Rowat's article, "Finland's Defenders of the Law" (Canadian Public Administration, September 1961) was one of the first to appear in Canada on the ombudsman concept.
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Author:Rowat, Donald C.
Publication:Canadian Public Administration
Geographic Code:1CANA
Date:Mar 22, 2007
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